This Comment argues that tasking the Archivist of the United States with promulgating electronic record-keeping guidelines and certifying presidential compliance is constitutional because the President’s ability to perform his or her constitutional functions will not be impaired and, additionally, because Congress has constitutional authority to promote the important objective of retaining presidential records.11 Part I examines the laws and jurisprudence that have culminated in public ownership of presidential records. Part II discusses the Bush Administration’s record-keeping problems, the indirect way the United States Congress learned of the problems, and the subsequent legislative response—the Electronic Message Preservation Act (EMPA). Finally, Part III argues that the Bush Administration’s constitutional argument against the EMPA was specious.
Michiels, Nicholas E.M. “Should Inmates Be Running the Jailhouse: Affirming the Constitutionality of Enhanced Archivist Involvement in White House Record-Keeping Policymaking.” American University Law Review 58, no. 6 (August 2009): 1567-1609.