Avoiding Questions Over Separation of Powers

What happens when courts fail to expeditiously resolve cases involving executive privilege?

AS A FORMER SUPREME COURT CLERK, Professor Payvand Ahdout has always kept tabs on the trends she sees in the federal judiciary. Over the past few years, she has forged her scholarly bona fides by backing these observations with data that reveal what’s going on behind the scenes. In 2022, the Yale Law Journal honored Ahdout as the journal’s inaugural Emerging Scholar of the Year.

In her latest paper, “Separation-of-Powers Avoidance,” forthcoming in the Yale Law Journal, she looks at how the federal appellate courts in recent years have gone to great lengths to avoid questions about separation of powers in cases in which Congress and the executive branch are in conflict. The result, she theorizes, is a distortion of legal meaning and the creation of vacuums that will ultimately be filled by someone other than a judge.

“Courts are trying to avoid compelling officers to do something—that’s the main thrust of this paper,” Ahdout said in an interview about the paper on UVA Law’s “Common Law” podcast. “But I think that has a whole host of implications for how it affects the merits and getting decisions on the merits.”

Ahdout’s research revealed how this pattern shapes the outcome of matters ranging from discovery, to standing, to mandamus to statutory construction. Applied to clashes between Congress and the president, it muddles the bounds of executive privilege and allows the executive branch to run out the clock on congressional subpoenas— via remands to lower courts to answer separation of powers questions—when an appellate court wouldn’t hesitate to address the merits of a congressional subpoena of a private party.

“There’s nothing barring a court of appeals or the Supreme Court from taking the standards that it articulates and applying them in the case at hand, instead of remanding,” Ahdout said. “So it’s the disparity between cases involving the executive and Congress as parties, and non-separation of powers cases that might involve similar doctrines, that is particularly striking for me.”

The federal courts are flush with congressional subpoenas and executive privilege claims right now, in part because of the “aberrational events” surrounding Donald Trump’s time in office, Ahdout said. But the doctrines being applied to these cases have a tendency to take on a life of their own, she cautioned.

“When you look back and see where doctrines like executive privilege come from, most cases have at their inception something going on during the Nixon era, which people thought was aberrational,” Ahdout said. “And the executive privilege that Nixon was claiming is the same one that Barack Obama was claiming, and so once you create a tool or you develop a doctrine, I don’t think you can then take the worms and put them back in the can.”

Whether this type of avoidance is a good or bad thing is beside the point for Ahdout, who says she hasn’t decided that for herself yet.

“But if we’re relying on courts to tell us, ‘This is what the law is,’ what we’re getting is not an articulation of what the law is,” Ahdout said. “The court isn’t telling us exactly what the constitutional contours of executive privilege are.”

—Melissa Castro Wyatt