Another excellent Linda Greenhouse analysis piece today in the NY Times. She begins:
The Bush administration's effort before the Supreme Court to shield the names of private citizens who helped devise its energy policy might appear on the surface unrelated to its defense, in cases also before the court, of the detention of those the administration has classified as enemy combatants. But the legal arguments are strikingly similar, projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers.The admiistration is arguing that the 1972 Federal Advisory Committee Act:
is "plainly unconstitutional" in authorizing "unwarranted intrusion" and "extreme interference" with the president's exercise of his "core" constitutional responsibilities.Here is a link to the July 8, 2003 decision of the USCA for the DC Circuit in the case of In re Cheney, and here is a link to the FindLaw.com site collecting all of the documents in this case, including a number of district court rulings -- scroll down to Tuesday, April 27th, about 2/3 down the page."Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders," Solicitor General Theodore B. Olson's brief asserts. * * *
Federal advisory committees are extremely common in the government; there are now 947, according to the General Services Administration. The Federal Advisory Committee Act imposes a number of obligations on these committees: they must hold their meetings in public, make their records accessible and have a membership that is "fairly balanced." The president must explain the actions he takes in response to a committee's recommendations.
The statute exempts any advice-giving group "composed wholly of full-time, or permanent part-time, officers or employees of the federal government." Since all members of the Cheney task force, formally called the National Energy Policy Development Group, are federal employees, the administration maintains that the law simply does not apply.
But in 1993, ruling in a suit seeking access to information about Hillary Rodham Clinton's health care task force, the federal appeals court here held that private citizens, through close participation, could be deemed "de facto members" of a committee and bring the committee within the law's coverage.
Applying that precedent to the Cheney case, the district court ruled in 2002 that Judicial Watch and the Sierra Club were entitled to pretrial discovery sufficient to determine whether the energy task force included any such members. * * * The administration is arguing that the "de facto member doctrine" was never intended by Congress and should be rejected by the Supreme Court. Its brief says the doctrine turns the statute "into a general warrant to search executive branch groups and committees for contacts with outsiders who might be deemed de facto members," and that this interferes with the president's ability to obtain the advice he needs to perform his constitutional duties.
The 1993 Hilary Clinton health care task force ruling mentioned in the Greenhouse article and cited in the July 8th Court of Appeals opinion is Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 902-03 (D.C. Cir. 1993).
Posted by Marcia Oddi at April 25, 2004 01:11 PM