text: Thus, when Congress enacted the Privacy Act, it was not restricting powers the president had; nor was it giving citizens rights they did not already have. Rather, it was simply making explicit the limitations on officials that should already have been implicit. Pursuant to his enumerated powers, the president may acquire, maintain, and disclose personal information about citizens. But those means are not unlimited. They are constrained by the enumerated powers themselves. Thus, even absent a privacy act, the president may not disclose information obtained pursuant to his authorized powers for reasons unrelated to such powers. He has no authority to do so. When it passes such an act, therefore, Congress should be seen neither as expanding nor as contracting the president’s powers‐​provided it stays within the bounds of its own power‐​but rather as more precisely defining those powers. The courts might have done that on a case‐​by‐​case basis, under the doctrine of enumerated powers. But Congress might do so as well, in a more systematic way.
  What is so troubling about Judge Green’s opinion is its apparent deference to the executive branch, as if the president were not thus constrained absent the statute. Thus, as background for her conclusions she cites Justice Department arguments to the effect that “application of the Privacy Act to the White House Office would restrict what records the President may keep and from whom the President may obtain information, … would require the President to disclose certain information to individuals from whom he seeks his information, … as well as restrict what information the President may disclose and to whom it may be disclosed.” The implication seems to be that the president is not already so restricted, not even implicitly; for these restrictions, she continues, again following the department’s line of argument, “would raise constitutional concerns, including separation of powers and Article II confidentiality.”
  To be sure, they would. But without proper analysis, they are only constitutional “concerns,” not conclusions. And there is no analysis here, much less proper analysis. Instead, we find the modern shibboleth, that a statute should be construed to avoid doubts about its constitutionality. Surely that is correct as a prima facie matter, but only for that purpose‐​to get the argument off the ground, so to speak, after which objections, such as those from a consideration of enumerated powers, may tip the balance. Yet when Judge Green cites “a corollary” of that principle-“that Congress, in enacting legislation restricting presidential action, must make its intent clear”(and Congress has not done that here)-the implication seems to be that, absent such clear articulation of congressional intent, the president’s power is plenary. Judge Green concludes, in fact, that “Congress has not clearly extended the Privacy Act to the White House Office.” (emphasis added) Thus, presumably, the White House may do as it pleases.
  That gets the presumptions of our system exactly backwards. The premise of our system is not “All that is not retained by the people is given to the government.” Rather, as the Tenth Amendment makes clear, it is “All that is not given to the government is retained by the people.” Thus, the burden is on government to show that it has a power, not on people to show that they have rights. It falls to the White House to show that it has the powers the Justice Department claims for it. It does not fall to individuals to show that they have rights that trump the otherwise plenary powers of the president. If the president can show that he has the powers in question, then Congress may not restrict them (or expand them), even if it does so “clearly.” If he cannot make that showing, then any congressional articulation of those limits would merely make explicit what is already implicit. It would not amount to a restriction on the president’s powers, since he has no such powers.