ASHINGTON,
April 27 — The Supreme Court argument about Vice President Dick Cheney's
energy policy task force on Tuesday finally came down to this question: Is
the presidency entitled to special treatment?
Underlying the case, although barely mentioned in the courtroom, is a
politically charged election-year dispute over the Bush administration's
efforts to avoid making public the names of energy industry officials whom
it consulted when developing its energy policy in early 2001.
Instead, the argument was a dense and jargon-laden duel that turned on
questions of federal court jurisdiction and procedure.
Groups seeking the energy officials' names — Judicial Watch, a
conservative legal organization, and the Sierra Club, a liberal
environmental group — won a lower-court ruling entitling them to pretrial
discovery of the names and roles of the private citizens who consulted with
the panel.
The issue before the Supreme Court is whether the administration can
appeal the order.
Discovery orders are generally not appealable before a trial, to
discourage piecemeal appeals. But Solicitor General Theodore B. Olson urged
the justices to make an exception. "We're submitting that discovery itself
violates the Constitution" in the context of this case, he said, by
intruding on the president's "core functions" of seeking advice and
developing legislation.
Declaring that "this is a case about the separation of powers," Mr. Olson
said the vice president, "acting as the subordinate and surrogate for the
president here," should not have to pay the price of submitting to discovery
"in order to challenge the constitutionality of a process that's invasive to
fundamental presidential prerogatives and responsibilities."
While the argument was lively enough in its exploration of the niceties
of civil procedure, it must have been a baffling letdown to any spectators
drawn to the courtroom by the various controversies swirling around this
case such as whether Justice Antonin Scalia's duck-hunting trip with Mr.
Cheney should have required him to recuse himself or what role disgraced
Enron executives might have had in shaping the panel's recommendations.
For his part, Justice Scalia, who rejected the Sierra Club's motion for
his recusal, was an active questioner of all three lawyers who appeared in
the case, Alan B. Morrison for the Sierra Club, Mr. Olson and Paul J.
Orfanedes for Judicial Watch.
In the 21-page opinion he issued last month explaining his decision to
remain in the case, Justice Scalia noted that he had a longstanding
friendship not only with the vice president, but also with Mr. Morrison.
The list of names of industry officials who consulted with the panel has
the potential to embarrass an administration that has included a number of
top officials with ties to the industry, including Mr. Cheney, a former
chief executive of Halliburton.
The federal district court here said the groups were entitled to try to
prove that the industry executives were so intimately involved in the
process as to have become de facto panel members, thus requiring it to
conduct business in public under a 1972 law, the Federal Advisory Committee
Act. The federal appeals court ruled that it lacked jurisdiction to hear the
administration's appeal.
The case, Cheney v. United States District Court, No. 03-475, presents
the justices with choices they may not find particularly appealing. If they
decide they lack jurisdiction to intervene, the case will return to the
federal district court here, and discovery will proceed.
That would be a substantial victory for Judicial Watch and the Sierra
Club, even if the groups ultimately lose in their effort to apply the
Federal Advisory Committee Act. On the statutory question of what the
Federal Advisory Committee Act means, the court appeared quite hostile to
the groups' assertion that it can cover unofficial, "de facto members." But
the justices would be able to address that issue only if they decide that
the case is properly before them.
To make an exception to the usual rules and find that they do have
jurisdiction, the justices need a reason. One reason might be the one that
Mr. Olson gave, that "the Constitution explicitly commits to the president's
discretion the authority to obtain the opinions of subordinates and to
formulate recommendations for legislation" and that "Congress may neither
intrude on the president's ability to perform these functions nor authorize
private litigants to use the courts to do so."
That is a broad assertion of executive authority that clearly left some
justices uncomfortable. Several suggested that before entertaining it, the
lower courts should require the president to make specific claims of
executive privilege, which can then be tested on appeal. Presidents
generally regard claiming executive privilege as politically unattractive,
and the Bush administration has tried to avoid it.
"We don't know what might be subject to executive privilege and
sustained, perhaps, and what would not be," Justice David H. Souter told Mr.
Olson, adding, "And it seems to me, until we know exactly what that is,
there's a pretty good argument that the final judgment rule should not be
subject to exception at this point."
Mr. Olson replied that claiming executive privilege would itself be
burdensome, requiring the president and vice president "to spend time with
documents," and that it would not necessarily cover everything that the
separation of powers entitled the president to withhold. Further, he said,
"it is the process itself" that the administration found objectionable.
In the argument, the justices explored one other option for excusing the
administration from the usual rule against appealing a discovery order. If
the information the groups could obtain from pretrial discovery would be
essentially identical to what they would obtain by ultimately winning their
suit, then the discovery order might well be seen as equivalent to a final
order, several justices suggested.
"As I understand it, discovery is just what you want at the end of the
case," Justice Stevens said to Mr. Morrison.
And Justice Souter asked Mr. Orfanedes, "If you get some discovery and
you win your case, what do you get when you win that you will not already
have gotten by the discovery?"
Both lawyers tried to assure the justices that if their case is
successful, they would ultimately obtain more information, including minutes
and drafts prepared by the task force. Mr. Olson disputed this, saying, "The
discovery is vastly broader than the relief that would be available" under
the Federal Advisory Committee Act.
That law imposes various requirements on committees set up to advise
executive branch officials, including a balance of views among the
membership. Committees composed entirely of executive branch officials are
exempt from the law. But in a 1993 ruling on the health-care task force led
by Hillary Rodham Clinton, the appeals court said the act could apply to a
panel formally composed just of government officials if outsiders could be
shown to be de facto members.
In the Cheney case, the district court said that precedent entitled the
plaintiffs to discovery sufficient to show whether outsiders had in fact
participated on that basis. The Supreme Court has never approved the appeals
court's "de facto membership doctrine."
Justice Stephen G. Breyer was among several justices who suggested
Tuesday that this interpretation had unduly expanded the law.