Opinion)
Constitutionality of the Presidential Records Act
The Presidential Records Act 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.
April 1, 2026
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether the Presidential Records Act of 1978 ("PRA" or "Act") is constitutional. We conclude that it is not.
The PRA is unconstitutional for two independent but interlocking reasons: It exceeds Congress's enumerated and implied powers, and it aggrandizes the Legislative Branch at the expense of the constitutional independence and autonomy of the Executive. "Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution," United States v. Morrison, 529 U.S. 598, 607 2000), or
"such implied powers as are necessary and proper to carry into effect the enumerated powers," Carter v. Carter Coal Co., 298 U.S. 238, 291
(1936). And congressional attempts to regulate the Presidency directly raise heightened separation of powers concerns. See The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C.
124, 126-29 (1996) ("Separation of Powers").
The PRA exceeds the oversight power because it serves no identifiable and valid legislative purpose. It exceeds any preservation power because Congress cannot preserve presidential records merely for the sake of posterity. It exceeds Congress's regulatory power over statutory agencies because it purports to regulate a constitutional office-the Presidency— that Congress did not create and that Congress cannot abolish. It exceeds the spending power, because that power allows Congress to incentivize outcomes with federal funding, not to directly regulate coordinate branches of government. And it exceeds Congress's power to assist in the execution of the powers vested in coordinate branches because it restri…
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