Mark Levin recently published a note on his Facebook page in which he rightly points out that Obama’s recent invocation of executive privilege with regard to the congressional investigation of Eric Holder’s conduct “flouts the law and the Constitution.” He goes on to say, again with good reason, that “executive privilege is a very important implied executive power.” Whenever you see a reference to “implied powers” it’s a good idea to ask yourself, implied by what authority? In the usual fashion of lawyers trained in the shibboleths of legal positivism, Holder cites Supreme Court opinions. But the Supreme Court has no power but what is explicitly delegated to the U.S. government in the Constitution. What gives the Court, the president or the Congress for that matter the authority to imply powers and privileges the words of the Constitution nowhere enunciate?
The best the legal positivists can do is to cite Article I, Section
8, of the U.S. Constitution, which gives Congress the power “to make all
laws which shall be necessary and proper for carrying into execution
the foregoing powers, and all other power vested by this Constitution in
the government of the United States, or in any department or officer
thereof.” At best this gives Congress the power to recognize by law the
actions it considers “necessary and proper” for carrying out the
provisions of the laws it has made. But how does this give Obama or any
other president the power to shield civil officers accused of breaking
the law from investigation by the branch of government charged with
making the laws?