ASHINGTON, April 24 — The Bush administration's effort
before the Supreme Court to shield the names of private citizens who
helped devise its energy policy might appear on the surface unrelated to
its defense, in cases also before the court, of the detention of those the
administration has classified as enemy combatants.
But the legal arguments are strikingly similar, projecting a vision of
presidential power in both war and peace as far-reaching as any the court
has seen and posing important questions of the constitutional separation
of powers.
Just as the administration is arguing in the detainee cases for the
exercise of presidential authority without judicial interference in
policies related to the war on terrorism, it is making sweeping claims in
the energy case for the existence of a constitutionally protected "zone of
autonomy" for presidential advice received in the ordinary course of
proposing legislation.
In this case, which the court will hear on Tuesday, the administration
is appealing a judicial order permitting limited inquiry into who outside
the government provided advice to Vice President Dick Cheney's energy task
force in early 2001. The organizations seeking the information maintain
that the formal list of the task force's members — the vice president, six
cabinet members and four other government officials — did not tell the
whole story, and that energy industry officials were so closely involved
with the deliberations as to have become de facto members.
As its primary argument, the administration asserts that the order
permitting pretrial discovery is based on a mistaken interpretation of the
Federal Advisory Committee Act, a 1972 law at the center of the dispute
over how the task force conducted its business.
But if the law, properly interpreted, really does support the discovery
order, the administration argues, the law itself is "plainly
unconstitutional" in authorizing "unwarranted intrusion" and "extreme
interference" with the president's exercise of his "core" constitutional
responsibilities.
"Congress does not have the power to inhibit, confine or control the
process through which the president formulates the legislative measures he
proposes or the administrative actions he orders," Solicitor General
Theodore B. Olson's brief asserts.
The administration's opponents say the breadth of this argument calls
into question long-settled assumptions about the ability of both Congress
and the courts to conduct the necessary oversight of executive branch
activities and ensure openness in government. "It is an extraordinary
assertion of executive power and privilege," Thomas Fitton, president of
Judicial Watch, one of the two plaintiffs in the lawsuit, said this week
at a symposium on the case sponsored by the Federalist Society, the
conservative legal policy organization.
Ever since the Supreme Court agreed in December to hear the
administration's appeal, most public discussion of the case, Cheney v.
United States District Court, No. 03-475, has concerned whether Justice
Antonin Scalia's duck-hunting trip with Vice President Cheney in January
disqualified him from participating in the case. By last month, when
Justice Scalia rejected a motion to recuse himself filed by the Sierra
Club, the other plaintiff, the issues in the case had been all but
submerged in the recusal debate.
As a legal matter, the case is about procedure, a fact that has also
helped obscure the underlying issues. The question is whether the
administration was entitled to a prompt appeal of the Federal District
Court's pretrial discovery order without first having to make specific
objections or assert claims of executive privilege. The federal appeals
court here refused to permit the administration to appeal in the absence
of a final judgment. It also refused to order the district court to
dismiss Mr. Cheney as a defendant in the case.
From the administration's point of view, procedure and substance amount
to much the same thing. The administration argues that if it had to submit
to a discovery order it regards as unconstitutional to have the right to
appeal that order, an eventual victory would ring hollow.
Federal advisory committees are extremely common in the government;
there are now 947, according to the General Services Administration. The
Federal Advisory Committee Act imposes a number of obligations on these
committees: they must hold their meetings in public, make their records
accessible and have a membership that is "fairly balanced." The president
must explain the actions he takes in response to a committee's
recommendations.
The statute exempts any advice-giving group "composed wholly of
full-time, or permanent part-time, officers or employees of the federal
government." Since all members of the Cheney task force, formally called
the National Energy Policy Development Group, are federal employees, the
administration maintains that the law simply does not apply.
But in 1993, ruling in a suit seeking access to information about
Hillary Rodham Clinton's health care task force, the federal appeals court
here held that private citizens, through close participation, could be
deemed "de facto members" of a committee and bring the committee within
the law's coverage.
Applying that precedent to the Cheney case, the district court ruled in
2002 that Judicial Watch and the Sierra Club were entitled to pretrial
discovery sufficient to determine whether the energy task force included
any such members. At that point the battle over discovery began, lasting
far longer than the eight-month life of the task force itself. The group
disbanded in September 2001, after submitting some 150 recommendations for
administrative and legislative action on energy policy.
The administration is arguing that the "de facto member doctrine" was
never intended by Congress and should be rejected by the Supreme Court.
Its brief says the doctrine turns the statute "into a general warrant to
search executive branch groups and committees for contacts with outsiders
who might be deemed de facto members," and that this interferes with the
president's ability to obtain the advice he needs to perform his
constitutional duties.
In reply, Judicial Watch says in its brief that the administration is
making a "startling bid for effective immunity from judicial process."
Courts should not be prohibited from taking account of a committee's
"operational reality," the brief says.
While 15 organizations concerned with the environment or with access to
information have joined briefs supporting the plaintiffs, the
administration has attracted not a single "friend of the court." That
seems odd, given that the administration is hardly without friends. But it
is perhaps explainable in the culture of Washington, where any group that
might be inclined to help an incumbent administration protect its secrets
knows that the next time, with a different party in power, its interests
might best be served by being first in line to pry the secrets
loose.
