The Office of Legal Counsel recently declared that the Presidential Records Act (PRA) “is unconstitutional, and the President need not further comply with its dictates.” 50 Op. OLC __, slip op. at 52 (Apr. 1, 2026). There was a time that when such a declaration would have generated major pushback in Congress. When in 2002 President Bush issued an executive order changing the executive branch’s interpretation and application of the PRA in comparatively minor ways, there was bipartisan criticism that these changes violated the spirit and letter of the act. Multiple hearings were held and bipartisan legislation introduced to reverse the executive order, which was ultimately rescinded by President Obama.
By contrast, there has been a fairly muted congressional reaction to the OLC opinion and, as far as I can tell (with the assistance of ChatGPT), complete silence from congressional Republicans. There are several possible reasons for this, but I suspect the most significant is learned helplessness. No one believes that the OLC opinion has anything to do with legal analysis or that there is any point to attempting to have a rational debate about it. Given the daily occurrence of more politically salient scandals, even congressional Democrats have little incentive to spend time on this issue.
In brief, OLC’s argument was that there was no enumerated Article I legislative power that allows Congress to regulate presidential records. This is an astonishing claim that no one had ever made before. OLC notably does not cite any judicial precedent, legal scholarship or even an executive branch opinion which reaches such a conclusion. Notably, when former President Nixon challenged the constitutionality of the Presidential Recordings and Materials Preservation Act (PRMPA), a predecessor statute to the PRA which applied solely to presidential records of the Nixon administration, he made no claim that it was beyond Congress’s enumerated powers. Instead, he argued (among other things) that by asserting public ownership and control of presidential records, PRMPA violated the separation of powers and infringed on executive privilege. These arguments were rejected by the Supreme Court. See Nixon v. Administrator of General Services (“Nixon v. GSA”), 433 U.S. 425 (1977).
OLC’s objections to the PRA are substantially similar to Nixon’s objections to PRMPA, which presents a problem because OLC opinions cannot overrule Supreme Court decisions (at least not yet). OLC attempts to get around this by recasting those objections as relevant to the enumerated powers “issue” (which it made up) and then arguing that the Supreme Court did not decide that issue in Nixon v. GSA. This is a sleight of hand that will not fool anybody who does not want to be fooled.
OLC’s next move is to focus its enumerated powers analysis on the question whether the PRA can be justified as an exercise of Congress’s oversight power. This is odd because Congress’s oversight power is not an enumerated power, and OLC cursorily dismisses or ignores altogether actual enumerated powers that provide fairly obvious grounds for enactment of the PRA. But as Professor Jonathan Shaub observes, focusing on the largely irrelevant issue of the scope of Congress’s authority to obtain executive branch records allows OLC to rely on a “treasure trove” of internal opinions and arguments that it has employed over decades to restrict congressional oversight.
Chief among these is a list of historical instances (or, in Shaub’s phrase, “tired examples”) in which presidents have refused congressional demands for executive branch records. This list was initially developed by executive branch lawyers in the 1940s and 1950s to support the proposition that the sitting president enjoyed total and unreviewable control over executive branch information. It was later employed in the 1980s to support a broad interpretation of the doctrine of executive privilege recognized in United States v. Nixon, 418 U.S. 683 (1974). And executive branch lawyers repurposed it again following Raines v. Byrd, 521 U.S. 811 (1997) to argue against congressional standing to enforce subpoenas. For OLC and its ilk, this list truly is a floor wax and a dessert topping.
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