執行特権の研究 : 執行特権の歴史的展開と連邦最高裁判決を素材として

抄録

President George W. Bush often invokes executive prerogatives, particularly executive privilege, as if the imperial presidency of Nixon administration revised. Although executive privilege is not mentioned Constitution, presidents have invoked the privilege to withhold executive information. The Supreme Court approved that the privilege derives from constitutionally prescribed separation of powers in United States v. Nixon. But the Court also defined limit of the power because separation of powers does not intend absolutely independent of each branches. In the result of this conclusion, when the privilege faces information requested by coordinate branches, the balancing test emerges. The test weighs executive need to secret and necessity to gain the information of coequal branches. It seems that this is good solution to executive privilege issue. However, standard of this test is not clear so that presidents often abuse the privilege like George W. Bush. The test has constitutional difficulty because of the dilemma which presidents need secrecy to perform constitutional duty as well as coordinate branches need the information to fulfill their constitutional power. In spite of the difficulty, we need to clear the standard of the test in order to prevent abuse of executive privilege. This article examines principle of executive privilege by the Supreme Court and tries to clear some problems about judicial reasoning, which include obscure standard. After the examination, I conclude that we need to amend judicial framework about executive privilege because the framework is not complete to control abuse of executive privilege.