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High court hears energy task force case

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    News Media Update         WASHINGTON, D.C.         Freedom of Information    

High court hears energy task force case

  • The U.S. Supreme Court heard oral arguments in the case for access to records of Vice President Dick Cheney’s national energy task force.

April 29, 2004 — The U.S. Supreme Court heard oral arguments Tuesday in the lawsuit against Vice President Dick Cheney and other administration officials for access to the records of the National Energy Policy Development Group, commonly called the energy task force. The lawsuit, filed jointly by the right-leaning government watchdog group Judicial Watch and the left-leaning environmental group Sierra Club, alleges that the task force, headed by Cheney, may have violated the Federal Advisory Committee Act by secretly including energy industry insiders on the committee or its subcommittees.

The Federal Advisory Committee Act requires the meetings and records of executive branch advisory committees to be public; however, committees comprised entirely of full-time government employees are not subject to the act.

“This is a case about separation of powers,” opened Solicitor General Theodore Olson, who argued the case for the government.

The government has maintained throughout the litigation that it is an unconstitutional intrusion into presidential powers for the vice president and other executive branch officials to have to respond to the lawsuit, let alone submit to the plaintiffs’ evidentiary requests as ordered by the U.S. District Court and U.S. Court of Appeals in Washington, D.C. It would violate the separation of powers between the executive and judicial branches of government for the vice president to even have to invoke an executive privilege argument against disclosure, Olson argued.

Alan Morrison of the Public Citizen Litigation Group, which represented the Sierra Club, and Paul Orfanedes of Judicial Watch both argued that the government’s appeal was premature. Because the government refused to respond to evidentiary requests, the trial court had not yet been able to issue a judgment to be appealed, or develop a record upon which to base an appeal, they argued.

It remains to be seen what the dispositive issue in the case will be. However, almost all of the justices had concerns about intruding into the process by which the executive branch receives advice.

Justices John Paul Stevens and Anthony Kennedy both expressed concern that enforcing the lower courts’ orders to turn over evidence for use in a trial would, in effect, be the same thing as making the records of the task force public.

Justice Antonin Scalia, whom the Sierra Club had asked to step down from the case because of a recent hunting trip with Cheney, said that forcing the vice president to assert executive privilege over the task force records would push a conflict between the executive and judicial branches “to an extreme.” However, he also questioned whether disclosing if outsiders were given a vote on recommendations by the task force, as opposed to just advising it, would be such an intrusion.

That the government was refusing to obey a lower court’s order to proceed with the lawsuit seemed to raise separation of powers concerns for Justices Kennedy and David Souter.

The Reporters Committee filed a friend-of-the-court brief in the case, arguing that the public and news media’s substantial interest in open government outweighs the minimal intrusion into executive powers presented by the Federal Advisory Committee Act.

A decision in the case is expected by the end of the court’s term in June.

(Cheney v. U.S. District Court) GP

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© 2004 The Reporters Committee for Freedom of the Press

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