Whether the President's interest in confidentiality can be overcome by a FOIA request

QUESTIONS PRESENTED © It is well-established, as this Court has stated, that, while “[t]he President’s | need for complete candor and objectivity from advisers calls for great deference from | the courts”, nonetheless, “neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an oo “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” U.S.A. v. Nixon, 418 U.S. 683 (1974). Accordingly, the bright line | rule articulated by this Court, was that “[a]bsent a claim of need to protect military, , diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.” This Court agreed that “[iJn no case of this kind would a court be required . to proceed against the president as against an ordinary individual”, id. (quoting U.S. os v. Burr, 25 F. Cas. 55 (C.C.D. Va. 1807)), but tempered this reluctance with the statement that “this presumptive privilege must be considered in light of our historic commitment to the rule of law.” Id. Accordingly, No case of the Court, however, has extended this high degree of deference to a President's generalized interest in confidentiality. Nowhere in the Constitution, as we have noted earlier, is there any explicit reference to a pom “= --="_ynrivilege of confidentiality, yet to the extent this interest relates*to*the effective Po te discharge of-a President's powers, it is constitutionally based. Id.(quoting U.S. v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). a _Yet, in relation to the present matter, in the case brought by Appellant in the oo US. District Court for ‘the Eastern District of Virginia, one issue presented is a ae ___petition for writ of mandamus to. compel the White House to respond _to a request for responsive. documents under the-Freedom of Information Act (FOIA), 5 U.S.C. § 552, . to determine whether standard metrics of secondary attack rate and infectious dose for COVID-19 are classified information, which they could not be, under Executive Order 12958, Classified National Security Information, dated April 17, 1995, unless 2019-nCoV was the property of the United States. Similarly, under Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778. 81 L.Ed.2d 694 (1984) (citations omitted), “[ijf this choice [of a regulatory agency] represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the . statute or its legislative history that the accommodation is not one that Congress ; would have sanctioned.” Yet, Virginia Governor Ralph S. Northam’s Executive Order Number 63 (2020), Order of Public Health Emergency Five: Requirement to Wear Face . Covering While Inside Buildings, dated May 26, 2020, amended November 13, 2020, mandates that “[a]ll individuals in the Commonwealth aged five and over shall, when . entering, exiting, traveling through, and spending time inside the settings listed below, cover their mouth and nose with a face covering, as described and recommended by the CDC.” This measure was issued “in furtherance of Amended _ .. _ ,_ Executive Order 51 (2020) and Amended Executive Order 61 and Amended Order of 7 OS Public Health Emergency Three (2020) 2 Id. : : : _ The questions presented are: : : , “ii: _-. 1, _ Whether Appellant presented a justiciable issue, where the choice of the Virginia Governor and the State Health Commissioner, failed to represent “a reasonable accommodation of conflicting policies*that were committed to the agency’s care by the statute,” so that a reviewing court “should. . . disturb it. .. [when] it appears from the statute or it