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Context of 'May 10, 2005: Appeals Court Rules that Cheney Task Force May Continue to Keep Information Secret'

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The Supreme Court hears oral arguments for and against the release of records pertaining to Vice President Cheney’s energy task force (the National Energy Policy Development Group—see May 16, 2001). The case is Cheney v. US District Court for the District of Columbia (03-0475) (see December 15, 2003). Two public interest groups, the environmentalist Sierra Club and the conservative government watchdog organization Judicial Watch, have joined to argue for the release of the records, saying that because the task force deliberations included energy industry executives and lobbyists, the task force is subject to the Federal Advisory Committee Act (FACA), which requires disclosure of the work of advisory groups that include non-federal employees. Bush administration lawyers, spearheaded by Solicitor General Theodore Olson, argue that releasing those records would violate the concept of “separation of powers.” The administration also argues that releasing the records, most pertinently the meetings between Cheney, his aides, and officials from energy corporations and lobbying firms, would damage the White House’s ability to receive candid advice. “This case is about the separation of powers and the president’s discretion to receive the opinions of subordinates,” Olson tells the court; Olson has resisted submitting task force documents even to the Court, saying that even that so-called “discovery” process would violate the Constitutional separation of powers. Lawyers for the Sierra Club and Judicial Watch argue that Cheney’s contacts with industry executives and lobbyists were improper while he was developing government policy that benefited their businesses. They are demanding to know whether energy lobbyists helped shape the government’s long-term energy policies. Lower courts agreed with Judicial Watch and the Sierra Club, and Cheney, with the Justice Department, has successfully ramrodded the case into the Supreme Court with unprecedented speed.
Justices Question Breadth of Requests - Justice Antonin Scalia, who refused to recuse himself from deliberations after accompanying Cheney on a duck-hunting trip in January, is one of the justices most favoring the government’s case. But even more moderate justices such as Stephen Breyer and Ruth Bader Ginsburg question whether the information request is too broad and inclusive. As for the White House, it argues that neither the courts nor Congress have any right to make any inquiries into the decisions of federal agencies and officials. Sierra Club lawyer David Bookbinder says the White House appears to have violated laws supporting open government: “What the panel said to energy executives was: Help us decide what the energy policy should be. A line has been crossed because the process should have been transparent. The panel was inordinately influenced by the energy industry.” Cheney has said that the executive branch must defend itself against the “continual encroachment by Congress.” The White House has already turned over some 40,000 documents from the task force after a lower court ruling compelled it to do so (see July 17, 2003), but the lawsuit before the Supreme Court says that another 100,000 potentially relevant documents and files remain secret. [MSNBC, 4/26/2004; New York Times, 4/28/2004; CNN, 6/24/2004]
Cheney 'Beyond the Reach of the Law?' - In a legal analysis of the case, former Nixon White House counsel John Dean calls the case “extraordinary,” and notes that Cheney “contends that he is, in essence, beyond the reach of the law. It began as a set of rather pedestrian discovery matters in two consolidated civil lawsuits. Now, however, because of Cheney’s stance, it could be a landmark Constitutional decision.” Dean sees the case as an opportunity for Cheney, with the assistance of Olson and Scalia, “to expand executive powers.” [FindLaw, 3/26/2004]
Case Sent Back to Lower Court - The Court will vote to send the case back to the District of Columbia Appeals Court for further adjudication (see June 24, 2004). That court will rule in Cheney’s favor (see May 10, 2005).

Entity Tags: Stephen Breyer, Sierra Club, US Department of Justice, Ruth Bader Ginsburg, Theodore (“Ted”) Olson, US Supreme Court, Richard (“Dick”) Cheney, Judicial Watch, Antonin Scalia, David Bookbinder, Bush administration (43), John Dean, Federal Advisory Committee Act, National Energy Policy Development Group

Timeline Tags: US Environmental Record, Civil Liberties

The Supreme Court rules in the case of Cheney v. US District Court for the District of Columbia (03-0475), in which two organizations, Judicial Watch and the Sierra Club, are attempting to force the White House to reveal information about the secret deliberations of Vice President Cheney’s energy task force (see April 27, 2004). Neither side gets what it asks for in the 7-2 ruling, as the Court sends the case back to the US Court of Appeals for further adjudication, with an order for that court to take a second look at its ruling that Cheney must allow a judge to review the task force documents (see August 2, 2002). Five justices—Stephen Breyer, Anthony Kennedy, Sandra Day O’Connor, Chief Justice William Rehnquist, and John Paul Stevens—vote to send the case back to the appeals court. Two justices, Ruth Bader Ginsburg and David Souter, vote to send the case all the way back to the original trial court, concurring with the majority. The Court’s two most conservative justices, Antonin Scalia and Clarence Thomas, vote to resolve the matter entirely in Cheney’s favor. Judge Anthony Kennedy, writing for the majority, instructs the appeals court—and all other courts who might subsequently hear such a case—to use a legal standard far more aligned with the executive branch’s claim of immunity from disclosure. Courts must afford “presidential confidentiality the greatest protection consistent with the fair administration of justice,” Kennedy writes, to protect the executive branch from being sued. Former Nixon White House counsel John Dean will later write that the Court may have avoided making a firm ruling because it did not want to wrangle with the issue of separation of powers, and the privilege of executive branch secrecy, in an election year. While most media and court observers call the decision a “punt” of little import, at least one, former Justice Department official Shannen Coffin, sees it differently. In a column for the National Review, Coffin celebrates the ruling, writing that due to “the vice president’s resolute assertion that he and the president should have the right to receive in confidence the advice necessary to the performance of their duties,” the White House has won a “major victory” in expanding its power to keep its procedures secret, regardless of the appeals court’s eventual ruling (see May 10, 2005). [National Review, 6/25/2004; FindLaw, 7/2/2004; Savage, 2007, pp. 167-168] The appeals court will agree with Thomas and Scalia, and rule in Cheney’s favor (see May 10, 2005).

Entity Tags: Sandra Day O’Connor, Sierra Club, William Rehnquist, US Supreme Court, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, National Energy Policy Development Group, Richard (“Dick”) Cheney, Anthony Kennedy, Clarence Thomas, Bush administration (43), John Dean, Judicial Watch, Antonin Scalia, David Souter

Timeline Tags: US Environmental Record, Civil Liberties

In an 8-0 ruling, the District of Columbia Court of Appeals dismisses a lawsuit by the Sierra Club and Judicial Watch asking that the court require information to be disclosed from Vice President Cheney’s energy task force from 2001 (the National Energy Policy Development Group—see May 16, 2001). The US Supreme Court sent the case back to the appeals court (see April 27, 2004 and June 24, 2004). The appeals court ignores reports from the Government Accountability Office finding that energy executives and lobbyists took part in the task force deliberations (see After January 20, 2001, Mid-February, 2001, March 21, 2001, March 22, 2001, April 12, 2001, and April 17, 2001), and accepts the government’s contentions that the executive branch should not be forced to disclose information about its workings to either the legislative or judicial branches. Because no evidence was submitted that showed the energy executives or lobbyists cast votes or exercised veto power over task force decisions, the court rules, the task force is not obligated to comply with federal laws mandating that such governmental working groups reveal details of their deliberations. The executives and lobbyists are essentially no different than staff aides, the court finds. Cheney’s energy task force was not an advisory committee, and therefore “the government owed the plaintiffs no duty, let alone a clear and indisputable or compelling one,” says the court’s opinion. The court applies the Supreme Court’s standard of law as recommended in the case, a standard far more favorable to the executive branch than any previously applied in the case. Several of the appellate judges will later say that they took the Court ruling to mean that the judiciary should not be involved in a legal struggle with the executive branch. The ruling allows Cheney to keep the task force documents secret, and says that the task force is not bound by the Federal Advisory Committees Act (FACA). [Associated Press, 5/10/2005; Savage, 2007, pp. 176]
'Double Blow' - David Bookbinder, a lawyer for the Sierra Club, says, “The decision is not going to be helpful in assuring open and accountable government.” [Sierra Club, 5/15/2005] He says the ruling is a double blow: “As a policy matter, we see the Bush administration has succeeded in its efforts to keep secret how industry crafted the administration’s energy policy. As a legal matter, it’s a defeat for efforts to have open government and for the public to know how their elected officials are conducting business.” Judicial Watch official Chris Farrell will later say the ruling leaves the open-government laws “a hollow shell.” [Savage, 2007, pp. 176] The New York Times calls the decision “regrettable,” and observes, “The Bush administration hardly needs encouragement to deny public access to vital government information.” [New York Times, 5/15/2005]
Rejected Judicial Precedent - In 2007, author and reporter Charlie Savage will write: “The decision relied entirely upon the assertion of two Cheney aides that the lobbyists had not cast any votes, a claim no judge ever verified by looking at the records. The court’s ruling also dismissed arguments that ‘influential participation’ by outsiders made them de facto members of the task force whether or not they cast votes, rejecting the standard the courts had applied to the 1994 Clinton health care task force.” [Savage, 2007, pp. 176]

Entity Tags: Sierra Club, New York Times, Government Accountability Office, Judicial Watch, Bush administration (43), David Bookbinder, Federal Advisory Committees Act, National Energy Policy Development Group, Richard (“Dick”) Cheney

Timeline Tags: US Environmental Record, Civil Liberties

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