View Full Version : Supreme Court Hears Arguments on Cheney's Secret Energy Panel

04-29-2004, 05:17 PM
Supreme Court Hears Arguments on Cheney's Secret Energy Panel (http://www.nytimes.com/2004/04/27/politics/27CND-SCOT.html)

Published: April 27, 2004

WASHINGTON, April 27 The Supreme Court heard long-awaited arguments today on a White House effort to keep confidential the deliberations that led to the Bush administrations' energy policy.

"This is a case about the separation of powers," Solicitor General Theodore B. Olson told the court on behalf of the administration. "The Constitution explicitly commits to the president's discretion the authority to attain the opinions of subordinates and to formulate recommendations for legislation."

The Sierra Club and Judicial Watch have contended that the administration is not really so concerned about the ability of President Bush and Vice President Dick Cheney to get frank advice in confidence.

Rather, the groups have said, the White House really wants to keep secret the names of the people on Vice President Dick Cheney's energy task force. The groups say that if the names were revealed it would bolster the impression that the White House had tailored its energy policy for the benefit of industry insiders - or, indeed, that it let the insiders do their own tailoring.

A lawyer for Judicial Watch, Paul Orfanedes, noted that some critics of the lawsuit had said that it was based "on nothing more than mere unsupported allegations."

"That is a false statement, in our view," Mr. Orfanedes told the justices. A moment later, he said, "We know that the vice president met with the chairman of Enron, Ken Lay. The vice president himself, in an interview he gave on `Nightline,' said, `We met with all kinds of folks. We met with energy groups. We met with environmental groups. We met with consumer groups."

"What does that prove?" Justice John Paul Stevens interjected. "What does that prove?"

"The point is," Mr. Orfanedes replied, "this shows the involvement of outside - "

"They talked to a lot of people," Justice Stevens broke in again. "Got a lot of advice. Does that make them de facto members of the committee?"

"Well," Mr. Orfanedes answered, "that's the question that we're seeking to answer through our discovery. The point is," he went on, "these are not mere unsupported allegations."

Whether outsiders took part in the energy-policy deliberations, thereby becoming de facto committee members, is crucial, both legally and politically.

Suggestions that Kenneth Lay, the former head of Enron, and other insiders were deeply involved in formulating federal policy could be troublesome for the Bush campaign. Enron collapsed amid scandal two years ago, and several former top-level officials have been accused of wrongdoing, though Mr. Lay has not been charged with any crime.

Mr. Bush, a former Texas oilman himself, has always had close ties to the energy industry and business leaders like Mr. Lay - "Kenny Boy" to the president - who was once one of his most generous campaign donors. Both Enron and Halliburton, the oil industry service company that Mr. Cheney led immediately before accepting Mr. Bush's offer to join the 2000 presidential campaign ticket, are based in Houston.

The Bush administration, which lost in the district and appeals courts, is appealing an order permitting limited inquiry into who outside the government provided advice to Mr. Cheney's energy task force in early 2001.

The organizations seeking the information maintain that the formal list of the task force's members - the vice president, six cabinet members and four other government officials - do not tell the whole story, and that energy industry officials were so closely involved with the deliberations as to have become de facto members.

Mr. Olson argues, on behalf of the administration, that the lower-court orders permitting pretrial discovery had been based on an erroneous interpretation of a 1972 federal law. But even if the 1972 law, properly interpreted, did support the pretrial discovery, Mr. Olson further asserts, the law itself is unconstitutional in authorizing "extreme interference" with the president's constitutional responsibilities.

The presentations today were so highly technical at times that spicier elements of the long-running controversy were all but buried - notably, the duck-hunting trip that Justice Antonin Scalia took with his old friend Mr. Cheney shortly after the Supreme Court agreed to hear the case argued today, Cheney v. U.S. District Court, 03-475.

In fact, Justice Scalia interrupted Mr. Olson with an early, pointed question, wondering whether "outsiders, nongovernment employees, were actually given a vote."

Mr. Olson replied that the 1972 law did not bar "ex parte communications between the executive branch and members of the public."

Justice Scalia did not appear satisfied. Would it really be so "terrible," he asked, to compel the executive branch to specify whether anyone who voted on the energy panel's recommendations was a nongovernment employee?

The justices are expected to decide the case before their summer break. Assuming they do, there will be plenty of time for it to become grist for the presidential campaign.

Mr. Cheney's Day in Court- editorial (http://www.nytimes.com/2004/04/27/opinion/27TUE1.html)
Published: April 27, 2004

The Supreme Court hears arguments today on Vice President Dick Cheney's attempt to keep the public from knowing who met with him behind closed doors three years ago to draft the administration's energy policy. The case is best known for the controversy over Justice Antonin Scalia's decision to go duck hunting with Mr. Cheney while it was pending. But it raises important issues in its own right. The court should affirm the decisions of the lower courts and order Mr. Cheney to disclose the names of the participants. It should also be mindful of the role Justice Scalia plays. There is a real danger that his participation will damage the court's reputation.

In early 2001, Mr. Cheney convened an energy task force whose membership was secret. Environmental groups charge that he let energy companies and other big campaign donors participate in drafting energy policy and let them lobby for huge subsidies for themselves. Judicial Watch and the Sierra Club sued, saying that because people who are not federal employees were de facto members of the task force, the Federal Advisory Committee Act requires that its records be made public. Mr. Cheney says the act does not apply because the task force's members were all federal employees.

To decide who is right, the trial court had to know something about who participated. It ordered limited disclosure, but Mr. Cheney argued that the order violated his executive privilege. The trial court said it was willing to take reasonable steps to guard the information, such as by reviewing it in private. But Mr. Cheney rejected these offers and is instead seeking a blanket order that he does not need to release the names.

Mr. Cheney is on weak legal ground, as both the trial court and the United States Court of Appeals for the District of Columbia Circuit have ruled. Many of the legal issues are arcane procedural questions about when pretrial discovery orders can be appealed. But the case also raises more substantive issues about the degree to which a vice president can claim to be above the law. As the Supreme Court held in a landmark case involving President Richard Nixon's Watergate tapes, executive privilege has its limits. Mr. Cheney may be entitled to ask that the disclosure requests be narrowed, but there is no basis for exempting him entirely.

When Justice Scalia's hunting trip became public, there were widespread calls for him to recuse himself. The Supreme Court said that the decision was Mr. Scalia's, and that he had chosen not to. That may resolve the question legally, but it remains troubling. If the court decides this case, which has implications for the Bush-Cheney re-election campaign, by 5 to 4, with Justice Scalia casting the deciding vote, it will bring back memories of Bush v. Gore. And it will further harm the reputation of a court whose authority has always derived from its claim to be a legal body, not a political one.