The Presidential Records Act (PRA) has lately been a source of controversy. The Department of Justice’s Office of Legal Counsel (OLC) published an opinion at the beginning of April that concluded the PRA is unconstitutional because it “exceeds Congress’s enumerated and implied powers” and “aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive.”

　　OLC’s opinion has raised eyebrows. It may even be wrong on the law. Nevertheless, it is good to see the political branches jockeying for position over the constitutionality of one another’s actions. A healthy, antifragile government requires occasional interbranch battles over the structure of our government. A separation of powers that is never tested risks atrophy. But for several decades, the executive branch has been on a winning streak; the OLC opinion presents a fresh opportunity for Congress to reassert itself.

　　A Brief History of Interbranch Information Incidents

　　OLC’s opinion is the latest skirmish in a multidecade fight over recordkeeping and access to executive-branch information. For most of our history, presidents treated their papers as personal property, and Congress acquiesced to this arrangement.That changed with President Nixon and the Watergate scandal. Dissatisfied with the arrangements for access to records negotiated by the Watergate Special Prosecutor, Congress passed the Presidential Recordings and Materials Preservation Act, which took all of Nixon’s papers into federal custody. Congress then enacted the PRA, establishing government ownership as the default for records relating to the president’s official duties.

　　Like the New Deal era, the Nixon years initiated a period of rapid repositioning between our branches of government. Congress enacted transformative laws in quick succession that sought to curb executive excess, while designing others to increase transparency into the executive branch. The executive branch has intermittently resisted these efforts, but the legislature pushed back. President Ford famously vetoed the 1974 FOIA amendments after then-OLC attorney Antonin Scalia advised him that the changes were unconstitutional and endangered classified and law-enforcement information. Congress overrode that veto.

　　This pull-and-tug between the political branches continued. In 1982, Congress held EPA Administrator Anne Gorsuch in contempt for refusing to turn over materials on Superfund enforcement priorities. And in the mid-1990s, the Filegate controversy revealed that the Clinton White House had violated the Privacy Act by accessing FBI background checks on hundreds of political staffers from previous Republican administrations. Congress investigated and issued a lengthy report chastising the executive.

　　A dispute over the Federal Advisory Committee Act and Vice President Cheney’s energy task force ended up at the Supreme Court in 2004 on the question of whether access to the task force’s records would “interfere with the officials in the discharge of their duties and impinge upon the president’s constitutional prerogatives.” Later, in 2008, a federal court allowed oversight nonprofits to force the White House Office of Administration to preserve email as President George W. Bush was preparing to leave office. And in 2012, Congress held Attorney General Eric Holder in contempt for failing to turn over documents related to the “Fast Furious” gunrunning scandal.

　　If these examples were not enough, recent times have also been no stranger to disputes over presidential recordkeeping and information access, from President Trump’s treatment of records at Mar-a-Lago to President Biden’s garage adorned with a classic Corvette and classified materials. In 2020, in Trump v. Mazars the Supreme Court held the potential for “interbranch conflict” warranted subjecting congressional subpoenas for President Trump’s personal information to heightened review, as “there is not always a clear line between [a president’s] personal and official affairs.”

　　These perennial clashes between Congress and the president are not a defect in our constitutional system; they instead represent a beneficial constitutional friction.They left each branch with sharper, better-tested institutional muscles.This is how the Framers intended our system to work.

　　Outlining OLC’s Argument

　　Understanding the arguments for why the PRA might be unconstitutional can help lay the groundwork for a congressional response. OLC offers three main arguments based on history, Article I’s enumeration of powers, and the limits of judicial precedent.

　　First, OLC shows that, before the PRA and its precursor, Congress never seriously tried to control presidential papers, which were instead viewed as the executive’s personal property. When the government acquired such papers from time to time, it did so by negotiating their transfer, purchasing them, or obtaining them through bequest. That nearly 200-year-old history is quite compelling. At the same time, the absence of congressional attempts to assert ownership over presidential papers is admittedly not determinative of the constitutional power to do so. It may be equally probative that the modern executive has largely conceded to Congress’s regulation of presidential records. President Carter, for example, did not object to the PRA when he signed it into law in 1978, and President Obama signed the 2014 PRA amendments without comment.

　　A healthy government characterized by the separation of powers needs occasional interbranch fights.

　　Second, OLC points to the lack of any express textual basis in the Constitution for Congress’s authority for the PRA. Congress’s implied authority to conduct oversight, OLC argues, has well-recognized limits. To what extent does the PRA serve a valid legislative purpose? How does the collection of nearly all presidential papers aid the exercise of Congress’s other express authorities? Is the PRA appropriately tailored?These questions remain unanswered.

　　OLC’s arguments are less compelling on Congress’s authority to regulate agencies and offices created by statute. Separation-of-powers objections are at their strongest vis-à-vis the papers of the president himself; they are weaker as applied to materials created by myriad other offices within the Executive Office of the President. To echo one commentator, we no longer live in an era of “cabinet government”; we are in an age of “presidential administration.” Our understanding of the PRA may need to reckon with modern unified executive theory and the sprawling administrative state.

　　Some have pointed to the relevance of the Property Clause of Article IV, which goes unaddressed in OLC’s opinion yet could provide grounding for the PRA. This clause gives Congress the authority to regulate “property belonging to the United States.” It is unclear whether its original public meaning was meant to extend beyond real property, or whether presidential papers would have fallen within its reach. But these are matters that should be explored.

　　Another interesting debate concerns the boundaries of the Necessary and Proper Clause. OLC’s critics ostensibly argue for a liberal interpretation of that clause where Congress’s authority to control presidential records does not need to be incidental to an enumerated power but instead provides its own implied basis for the PRA. This points to a deeper divide about the limits of federal legislative power.

　　Third, and finally, the OLC opinion takes the limits of judicial precedent seriously. Technically, the Supreme Court has never ruled on the constitutionality of the PRA—we are still in the stage of the political branches vying for predominance on that interpretive question. Nixon v. Administrator only concerned the PRA’s precursor statute, which OLC notes was “materially narrower,” applied only to Nixon, and reflected the “extraordinary circumstances” of the Watergate era. The Court’s reasoning hardly engaged in earnest with the underlying constitutional questions.

　　Reactions to the OLC Opinion

　　In the wake of the OLC opinion, the White House insisted that little had changed. White House Counsel David Warrington circulated a memo reminding staff to remain conscious of recordkeeping obligations and to “preserve any material related to the performance of their duties.” The open-government community, not content to trust these promises, widely lambasted the OLC opinion. Two organizations filed lawsuits, even securing a preliminary injunction mandating compliance with the PRA. Legal academia, for its part, has followed the issue and provided various opinions.

　　Members of Congress, however, have largely been silent. A coalition led by US Senator Adam Schiff dispatched an oversight letter demanding the Administration commit to “abide by the lawfully-enacted PRA” and offer a “briefing” on “records management procedures.” Yet we are unaware of any other planned congressional reaction. Unfortunately, that notable silence is the very problem that antifragile government theory warns against.

　　Antifragile Government Requires Contestation

　　A healthy government characterized by the separation of powers needs occasional interbranch fights. These fights help sustain antifragile institutions by providing a venue to explore and refine the constitutional relationships at play. In his 2012 book Antifragile, Nassim Nicholas Taleb popularized the idea that certain things become more resilient when exposed to stress. Some systems are improved by disorder because they must constantly adjust and respond. Yet these same systems deteriorate during times of stasis and calm. This is an apt model for the relationship between the branches of our federal government: conflict forces each branch to articulate, defend, and improve its understanding of its constitutional role.

　　It can be tempting to conceive of the Supreme Court as a neutral arbiter of separation-of-powers disputes, floating above and detached from the other two branches. Marbury v. Madison looms large in our collective civic imagination; we expect the Court to have the final say. But when we indulge that expectation, we risk relying too heavily on the Court to restore calm and balance between the other two squabbling branches. A proper departmentalist conception of the separation of powers, by contrast, requires that each branch—acting within its own sphere and according to constitutional strictures—develop and assert its view on the laws that define its position relative to the others. This was a principle famously articulated by Attorney General Ed Meese in his 1986 Tulane University address, “The Law of the Constitution”:

　　Constitutional interpretation is not the business of the Court only, but also, and properly, the business of all branches of government. … Each of the three coordinate branches of government created and empowered by the Constitution—the executive and legislative no less than the judicial—has a duty to interpret the Constitution in the performance of its official functions.

　　Congress implicitly affirms its view that a new law is constitutional by the act of passing it. Conversely, Congress can decline to pass a bill if it believes it is unconstitutional, regardless of whether it thinks the Supreme Court would uphold the law.The president should only sign bills he believes are constitutional and must continually reassess the validity of laws he is tasked with enforcing. Perhaps more controversially, the president should carefully weigh whether to enforce laws he deems constitutionally problematic. The executive branch, as a whole, should not plow headlong into administering laws it believes are unconstitutional. It should instead clearly state why it is not enforcing a certain law and allow the other two branches—but especially Congress—to engage with that argument. OLC’s opinion on the PRA is one example of this process playing itself out. The Supreme Court may get the final word, but only after the other two branches have given their say.

　　There is no perfect separation of powers where each branch sits in enduring equipoise alongside the others. Self-government requires a constant recalibration based on the circumstances and relative strengths of different institutions at different times. There are issues that clearly belong to one branch or another, and identifying the boundaries of those issues is a fraught and ongoing project. The process is not easy.

　　If each branch merely takes the others as it finds them and never attempts to reposition itself, our whole constitutional system will degrade over time. This is where Congress finds itself today—content to complain about executive overreach while doing too little to check it. Congress should steadfastly engage with the Administration’s view on the constitutionality of the PRA as an opportunity to exercise its separation-of-powers muscles. OLC’s opinion is not merely a political crisis to be managed or which the courts ought to resolve prematurely. It is an opportunity for Congress to make its case and defend its legislation.

　　We take no position here on who should ultimately prevail. As we have explained, OLC offers some arguments that require close consideration. The main point, though, is that Congress needs to engage, rather than outsource the resolution of this important constitutional question to the judiciary. There are various options on the table: an oversight hearing forcing White House officials to explain their policies and practices, conditioning appropriations on PRA compliance, or even a joint resolution reaffirming the statute’s constitutionality.These actions—and the ensuing fight—may produce short-term instability. But they will help create an antifragile government in the end, leading to a more resilient equilibrium built through contestation rather than complacency.