The problem: The federal law governing disposition of such files, the President John F. Kennedy Assassination Records Collection Act of 1992, is still in force. It set a deadline of October 26, 2017, nearly 54 years after the horror in Dealey Plaza, Dallas, for the release of any still-withheld documents. By executive fiat, Biden made his memo the “final certification” under the Act, meaning that, at least so far as our commander-in-chief is concerned, the legislation passed unanimously by Congress over three decades ago is now dead.
To those familiar with this situation, Biden’s edict looks like an effort to preempt a troublesome conclusion to legal action currently under way. In October 2022, the non-profit Mary Ferrell Foundation (MFF) filed suit in federal court against Biden and the National Archives, charging that the president had already violated the JFK Records Act when he certified postponement of withheld files in October 2021. In December 2022, Biden proclaimed he was again certifying postponement, the fourth time a president had done so since the legal deadline. His 2023 diktat is trying to put a “final stamp” on an already illicit process, in hopes of brushing away the will of Congress forever.
MFF v. Biden raises constitutional issues related to the separation of powers, but its most important element may actually be an ancient principle of Anglo-American law. The defendants’ lawyers argue that the courts have no authority to enjoin or constrain the President in the exercise of his powers, including declassification of government records, and their argument rests on the idea that there is nothing special about the JFK Records Act. Yet they know this is untrue.
