The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

There Is No Equitable Constitutional Cause Of Action To Challenge The Presidential Record Act Policy

The Supreme Court needs to bring clarity to this issue.

Josh Blackman | 5.20.2026 11:19 PM

Last month, I wrote about the Office of Legal Counsel's opinion finding that the Presidential Records Act was inconsistent with Trump v. Mazars. Somewhat remarkably, several writers have attacked the opinion, but minimize, or even ignore, Mazars.

The American Historical Association filed suit, arguing that it is injured because at some point in the future, it will not be able to access certain presidential documents. Federal district court Judge Bates has found the new policy is likely unconstitutional. You know things are going south when the first sentence is a quote from 1984.

Again, even more remarkably, the court finds that Mazars has little bearing on the case.

Mazars is even less on point. There, the Supreme Court only concluded that the legislative subpoenas in question implicated the separation of powers, without determining how each factor panned out. And Mazars involved Congress's implied investigative powers; it focused on the lack of authority to issue legislative subpoenas without any discernable legislative purpose. That discussion is not relevant here because Congress has independent, enumerated authority to enact the Records Act under the Property Clause and the Necessary and Proper Clause, without relying on any implied authority.

Mazars was a delicate compromise by the Supreme Court, with a different composition at a different time. I suspect that even the Chief will........

© Reason.com