In Cheney case, court reviews executive power

By Warren Richey

WASHINGTON - It is fairly certain there won't be any ducks in the main hall of the US Supreme Court Tuesday. But that doesn't mean some folks won't be listening carefully during oral arguments for a quack or two.

On the docket is a case seeking public disclosure of information about Vice President Dick Cheney's national energy task force. The dispute is an important election-year test of how much the White House can shield the executive branch from public, congressional, and judicial scrutiny.

But it is perhaps best known as the case behind the controversy over a Louisiana duck hunting trip in January attended by Mr. Cheney and Justice Antonin Scalia, among others. The disclosure of the trip sparked a national debate about the propriety of judges vacationing with those who have cases pending before them.

It prompted the Sierra Club, one of the parties to the energy task-force litigation, to formally request that Justice Scalia step down from the case. He refused, insisting that mere social contacts between justices and senior government officials do not undermine a jurist's impartiality.

Nonetheless, Tuesday, as the high court takes up the vice president's case, there will be two matters before the court. The first relates to the task-force litigation, the second relates to the credibility of Scalia and the high court itself in the wake of the duck-hunting controversy. "Obviously people will be watching Scalia closely in his questioning during oral argument," says Jonathan Turley, a constitutional law professor at George Washington University School of Law. But the scrutiny won't end there, he says.

"Whatever decision he makes [in the Cheney case] is likely to be read through the lens of suspicion," Mr. Turley adds.

If Scalia votes in favor of Cheney, some will believe it is a result of Scalia's personal relationship with the vice president, Turley says. While if he votes against Cheney, some will question whether Scalia is overcompensating in an attempt to clear his name.

"Either way, justice will hardly be served by Justice Scalia in this case," the professor says.

Separation of powers

Even without the extra attention from the duck-hunting trip, the energy task-force case is potentially one of the most significant of the term. At issue: the extent to which the Constitution's separation of powers doctrine entitles the White House to operate in secrecy - beyond the prying gaze of the public, Congress, and even the courts.

The White House position is a version of the same separation of powers argument being used to justify expansive presidential powers to detain enemy combatants and insulate those determinations from judicial oversight.

In the Cheney case, the justices are being asked to decide whether a federal judge and an appeals court panel acted properly when they ordered the White House to disclose internal documents related to the development of the Bush administration's energy strategy back in 2001.

Following press reports that energy industry officials and lobbyists were fully participating in nonpublic meetings of the energy task force, two organizations filed lawsuits seeking to identify the extent of private involvement in the task force's work.

The two suits were filed by Judicial Watch, a conservative government-watchdog group, and the Sierra Club, an environmental group. Both suits seek access to internal task-force documents under the Federal Advisory Committee Act (FACA), which requires advisory committees to publicly disclose their documents.

Lawyers for Cheney and the task force refused to release any documents, saying that the task force was exempt from FACA's requirements because it was made up exclusively of senior Bush administration officials.

A federal judge ordered the administration to release enough documents to examine the composition of the task force to determine if the FACA exemption applied. Cheney says the refusal to do so is a matter of principle to protect the ability of presidents to obtain unvarnished advice.

Others disagree. "It is a question of how secret can this administration be," says Rob Perks, a spokesman with the Natural Resources Defense Council. "What do they have to hide, and why are they hiding it?"

A federal appeals court panel upheld the judge's ruling calling for disclosure. Rather than release the documents, Bush administration lawyers took their case to the US Supreme Court.

Straight to the top

What is unusual about the case is that it has already arrived at the high court even though a federal judge has yet to hold a trial on the merits of the issues. Usually appeals of such preliminary issues are not permitted until after a case has been fully litigated in the lower courts.

What makes this case different, according to US Solicitor General Theodore Olson, is that the lower court decisions, if upheld, would convert FACA into "a mechanism for intrusive and unconstitutional interference with core executive branch functions." In other words, by ordering the discovery of certain task-force records to test the allegations raised in the lawsuits, the judge is invading the exclusive domain of the executive branch in violation of the Constitution's mandated separation of powers.

"The important separation of powers questions raised in this case are neither premature nor stale," says Mr. Olson in his brief to the court. "And the discovery ordered [by the federal judge] was not some preliminary step on the way to a possible separation of powers violation, but a significant violation in itself."

In his brief on behalf of the Sierra Club, Alan Morrison counters, "Not only would production of such records not be burdensome, but they could readily be redacted to delete any arguably deliberative or otherwise privileged information."

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