Justices hear Cheney energy case.
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| Wed, 04-28-2004 - 9:40am |
http://www.chicagotribune.com/news/local/chi-0404280273apr28,1,6770635.story?coll=chi-news-hed
The Supreme Court took up the far-reaching question Tuesday of whether the executive branch has broad constitutional powers to solicit outside advice and make policy decisions without being forced to disclose details of the deliberations to the public.
In lively oral arguments on one of its most important cases this term, the court appeared divided. The justices grilled lawyers for the Bush administration and two public interest groups over whether Vice President Dick Cheney's energy task force should be required to disclose details of its deliberations three years ago on a national energy policy.
The two groups, Judicial Watch and the Sierra Club, had won a lower court decision that would allow them to obtain information about the inner workings of the task force, including its contacts with the energy industry.
The organizations had sued to enforce disclosure, alleging that the energy industry, including bankrupt Enron Corp. and its former chairman, Kenneth Lay, had undue influence in formulating the Bush administration's energy policy.
Rather than complying with this so-called "discovery" of evidence order by a U.S. district court or claiming executive privilege over the documents, the administration made an extraordinary argument that the Constitution protects the president and vice president from revealing any details about the proceedings.
The case went to the high court after an appellate court upheld the district court's decision. If the administration loses in the Supreme Court, Cheney would have to reveal records of the task force in the middle of a presidential campaign. A decision is expected by the end of June.
White House argument
"This is a case about separation of powers," said Solicitor General Theodore Olson, arguing for the administration. "Congress may neither intrude on the president's ability to perform these functions nor authorize private litigants to use the court to do so."
Among those peppering both sides with questions was Justice Antonin Scalia, who stirred up a political storm when it was revealed he went on duck-hunting trip to Louisiana with Cheney, an old friend, shortly after the court agreed to hear the vice president's appeal. Scalia refused to step aside from the case.
In his questions, Scalia expressed sympathy with the administration's position, challenging an argument by the two public interest groups that energy industry interests had "de facto" membership on the task force. They had no power to vote on the decisions, the justice said, and so could not be classified as members.
Scalia also said the president has the right to refuse to reveal details of such discussions.
"He has the power as an independent branch to say, `No, this intrudes too much upon my powers. I will not do it,'" he said.
At another point, Scalia said, "I think executive privilege means whenever the president feels that he is threatened, he can simply refuse to comply with a court order."
Other justices did not appear to want to go so far. Justice David Souter said the administration failed to assert executive privilege against release of documents and details of task force proceedings when the case was before U.S. District Court in Washington, D.C.
"So we don't know what might be subject to executive privilege and sustained, perhaps, and what would not be," Souter said. A constitutional question would only arise when the lower court decides what is to be made public, he said.
But Olson said the district court made an overly broad decision requiring release of information.
Souter: More specifics
Nonetheless, Souter and Justice Sandra Day O'Connor indicated that a final judgment on the constitutional issue raised by Olson might have to await a decision by the lower court on which specific documents should be released.
The two organizations filed suit for release of the information under the Federal Advisory Committee Act, which requires that advisory committees generally must make public their records and documents.
Alan Morrison, arguing the case for the Sierra Club, said advisory groups used by the Cheney task force came within the purview of the law. He added that this law does not prevent the White House from keeping outside advice secret as long as formal advisory committees are not involved.
Breyer's worry
But Justice Stephen Breyer expressed concern that if government officials trying to develop a new policy reached out to outside experts, "every one of these outside people could be hit with a discovery order" about their actions.
Breyer said Congress could not possibly have intended to put "government in a cocoon when it develops legislative policy."
Justice Ruth Bader Ginsberg challenged Olson on why the administration had released more than 36,000 pages from agencies about developing the energy policy while it was now fighting disclosure of other information.
Olson said those documents were released as part of the Freedom of Information Act and that the administration did not want to be too confrontational and cooperated with some requests.
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Court arguments
Solicitor General Theodore Olson: dispute involves bringing the president and the vice president of the United States into court to defend themselves with respect to . . . obligations and responsibilities that they have under the Constitution.
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Sierra Club lawyer Alan Morrison: We believe that, if outsiders participated in the marking up of drafts, they had input into the drafts . . . even though they had no formal vote.
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Morrison: As the district court understood it, we would get the basic information about who went to the meetings, who had access to the drafts. . . .
Justice Anthony Kennedy: Do you think those are fairly concluded within the separation of powers. . . . ?
Morrison: I do not think that the government has any right to withhold that kind of information in this kind of case.
Kennedy: But that's the issue.


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You know what, I understand that 'politics' are being played here.
C
I agree with this statement.
Even though this case is titled, Cheney vs. U.S. District Court, the case isn't about Cheney at all. It is about the *office* of the Vice President (someday there will be a liberal in there, so people should carefully consider what they wish for). This case is about whether or not private meetings with the vice president should be kept private. Arguing for the *office* is hugely different from arguing for the man (Cheney) himself.
Although Scalia shouldn't have done anything to give the left wing *political* red meat, this "friendship" has nothing to do with the actual case, and his refusal to recuse himself is actually good for both sides. If he did bow to pressure and recuse himself based on something obscure like this, he would set a precedent and political opponents OF WOMEN would be able to get Ruth Bader-Ginsberg recused due to her involvement and friendship with NOW organizers. The court hears ongoing cases from NOW on issues like equal pay, discrimination, and birth control/abortion issues. In these cases it is the ORGANIZATION that is a litigant, not individuals who Bader-Ginsberg happens to know.
The leftists need to consider this carefully, because that prospect could be a lot more chilling that whether or not the office of the V.P. can conduct private meetings.
But I don't think the goal is recusal at all. I thinks it's nothing more than politics, and painting an incorrect perception...
Edited 5/2/2004 11:24 am ET ET by iminnie833
See, I disagree with that completely.
You are comparing apples and oranges.
James
janderson_ny@yahoo.com
CL Ask A Guy
Also, In case you haven't noticed, I keep up with what the right-wing is thinking. There are groups out there ALREADY trying to get Bader-Ginsberg to recuse herself from anything to do with NOW based on the Cheney thing. (Bader-Ginsberg has even *lent her name* to something that NOW is doing.) They would want nothing more. I, being a woman, disagree with this stance. Nevertheless it IS out there.
Edited 5/3/2004 9:43 am ET ET by iminnie833
I know that he is suing, but he is suing "on behalf of the office" in order to protect himself and the documents that he doesn't want to become public.
James
janderson_ny@yahoo.com
CL Ask A Guy
If he loses the Vice President, *ANY* vice president in the future will not be able to ever hold a private meeting. That is what this case is about.
Actually, THIS case is about this particular meeting and an intepretation of law, the BROADER ramifications of this case could go as far as you describe if it was handled improperly, but it COULD ALSO mean that the president and VP would have the right to simply hide anything from the public on the basis of feeling under "threat" from outside sources.
Again, THIS case is SPECIFICALLY about these documents, the RULING will have broader ramifications, but THIS CASE is only about THIS MEETING and THESE DOCUMENTS and more importantly for THIS TOPIC, DICK CHENEY.
James
janderson_ny@yahoo.com
CL Ask A Guy
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