The Constitution “explicitly” gives the president the discretion to obtain opinions and information of a confidential nature from subordinates and outside advisers without having to face the prospect of public disclosure, a Bush administration attorney argued before the Supreme Court Tuesday.
“Congress may neither intrude on the president’s ability to perform these functions [nor] authorize private litigants to do so,” said U.S. Solicitor General Theodore B. Olson during hour-long oral arguments before the high court Tuesday. “This is a case about the separation of powers” between the executive and legislative branches of the federal government.
In addition to the constitutional issue, Olson told the nine justices that any presidential advisory group, such as the Bush administration energy task force, comprised strictly of governmental employees was exempt “on its face” from the application of the Federal Advisory Committee Act (FACA), or open-meeting law. The task force was made up of “only members of the executive branch,” he said.
The FACA law “does not permit the litigation and [broad] discovery” demands on the Bush White House for details related to closed-door meetings between members of the energy task force and energy industry executives and other outside individuals, he said.
At issue in the nearly three-year-old case is whether Vice President Dick Cheney, who chaired the task force, can be compelled to divulge the names of energy officials who may have had a hand in crafting the administration’s energy policy in the spring of 2001.
Plaintiffs Judicial Watch, a public watchdog group, and the Sierra Club, a national environmental organization, have tried for years to legally obtain the records of the energy task force, particularly how it operated and the identities of outside individuals with whom it met. The two groups and other critics contend that large Bush campaign contributors, such as former Enron Corp. Chairman Kenneth Lay, had a direct pipeline to the task force and unduly influenced the drafting of the energy policy.
The Bush White House refused to turn over the sought-after information to the organizations on the grounds that it would encroach on the authority of the executive branch to obtain confidential information, despite a May 2002 order by the U.S. District Court in Washington, DC, to do so. The lower court ruling was upheld by the U.S. Court of Appeals for the District of Columbia last September, making it ripe for review by the high court. A ruling from the Supreme Court is expected before July.
Justice Antonin Scalia, who was asked but refused to recuse himself from the case, quizzed Olson as to why the White House was so reluctant to part with the information. “Why would that be such an intrusion upon the executive [branch] simply to request knowledge of whether anybody who voted on the various recommendations of the [task force] was a non-government employee?”
Some justices also asked why the Bush administration didn’t try to refine the scope of the discovery order issued by the district court, and simply exert executive privilege over those requests that were found to be burdensome.
“We do not know what would be subject to executive privilege and sustained perhaps and what would not be. And it seems to be until we know exactly what that is, there’s [a] pretty good argument that the final rule should not be subject to [a FACA] exception at this point. And it’s ‘the what would not be [subject to executive privilege]’ that would raise the constitutional question that you’re trying to raise,” remarked Justice David Souter.
“You could have gone back then and said [to the] district judge this has to be narrowed,” agreed Justice Sandra Day O’Connor.
The Bush administration simply could have asserted executive privilege over each discovery request that it found to be “burdensome,” said Justice Stephen Breyer. “If [that was] granted, you’d have no problem. And if [it was] denied, you’d immediately come up [on appeal] on that,” he said.
That would force the president to assert executive privilege every time someone filed a lawsuit involving the administration, Olson argued. “That means that FACA would be used in every case to file a lawsuit to challenge the president.”
He said the Bush administration tried its best to narrow the scope of the discovery order, and to work out the “delicate constitutional” issues at the lower court level.
Bush administration officials “paint a picture of having been backed into a corner,” said Washington attorney Alan Morrison, who argued the case for the Sierra Club. The government’s position is that there should be “no discovery of any kind,” he argued. The Bush White House believes it has “some kind of special immunity from discovery.”
The court raised concerns that a favorable decision for Sierra Club and Judicial Watch would be felt throughout government, forcing congressional lawmakers and federal agencies to open up their files to public scrutiny as well.
Judicial Watch’s attorney, Paul Orfanedes, who made his first appearance before the Supreme Court, argued that the FACA exception shouldn’t apply because “de facto” (non-governmental) members participated to some extent on the task force and in creating President Bush’s energy policy.
This begged the question by the court of what constituted a task force member. Can an outside individual acting on behalf of an agency head be considered a member?
Olson argued that the exception to the FACA law depended solely on the “formal” governmental membership of the task force, not upon any “informal” participation that might have occurred with outside individuals.
Judicial Watch’s position was grounded in the rulings of the lower courts, which said that “when, in fact, the non-governmental officials are involved in such a way that make[s] them indistinguishable from the government officials, then the law [FACA] is triggered here,” said the group’s President Tom Fitton.
The Bush administration contends that court-ordered disclosure of the task force records would severely restrict the ability of it and other administrations to seek confidential advice from outside advisers in the future. But Fitton claims otherwise, noting that presidents still would be able to informally obtain information from their advisers.
“There’s nothing that prevents the president from bypassing this law by engaging in this sort of policy formulation in an informal way,” he said earlier this week.
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