| Author | Message | | Guest | | Posted: Thu Dec 12, 2002 1:58 am Post subject: WAR ON TERRORISM IS SHRINKING CONGRESSIONAL POWERS |
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HOW THE WAR ON TERRORISM IS SHRINKING CONGRESSIONAL POWERS: PART ONE
By JOHN W. DEAN
---- Friday, Oct. 11, 2002
This is Part One of a two-part series by Dean on threats to Congressional power from the White House and the Supreme Court during the war on terrorism. Part Two will appear on this site on October 25. - Ed.
Not since Richard Nixon's presidency have the powers of Congress been in greater jeopardy. Not only is the Bush White House seeking to expand presidential powers at the expense of Congress, but the conservative gang of five on the U.S. Supreme Court are busy trimming Congressional powers directly.
The Bush-Cheney efforts, along with those of the Rehnquist-Scalia-Thomas-O'Connor-Kennedy bloc, are raw power politics and an example of short-sighted decisionmaking. These efforts certainly raise the stakes for the November 5 Congressional elections.
These moves to curb Congressional authority also raise the question why. In Part One of this two part-series, I will look at the threat to Congressional power posed by the Bush White House; then, in Part Two, I will turn to the threat posed by the Supreme Court.
The Man Behind The White House Power Plays
Clearly, Vice President Dick Cheney is the force behind the White House's effort to enhance presidential power, and limit the powers of those on Capitol Hill. This is evident because President Bush simply does not possess the mental acumen, or experience, to play the game his White House has instituted; but Cheney does. This is not to say Bush doesn't embrace the undertaking, for he obviously does, but simply that Cheney is almost certainly the moving force behind it.
Indeed, Cheney has all but admitted the point. "In thirty-four years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job," Cheney told ABC's "This Week" in late January.
His reference to "thirty-four years" is quite clear. About thirty-four years ago, in 1969, Dick Cheney joined the Nixon Administration - serving in a number of positions at the Cost of Living Council, and later the Office of Economic Opportunity. When Nixon was forced from office, Cheney helped Vice President Ford make the transition to the Oval Office and in 1975, Cheney became President Ford's White House chief of staff.
Cheney's reference to the erosion of presidential powers thus appears to relate to the Nixon presidency and Watergate, and then to the Reagan presidency and Iran-Contra. Accordingly, one might at first wonder if he was referring to the Independent Counsel Law. But that law has expired. So while no law eroded presidential powers more, nor made it more difficult for the president to do his job, than the Independent Counsel law, that law cannot be Cheney's target.
Nixon's Treatment Of Congress, and How It Likely Informed Cheney's Views
What then is Cheney's target? History suggests that it is probably what he sees as the expansion of Congressional power vis-a-vis the President. Besides the folly of the Independent Counsel law, this perception is probably what bothers Cheney most - and what he would most like to remedy.
Cheney watched Nixon "throw down a gauntlet to Congress, the bureaucracy, the media, and the Washington establishment and challenge them to epic battle" - to quote the disgraced former president's memoirs. But for Watergate, Nixon would have succeeded.
Then-Speaker of the House Carl Albert, a Democrat, pleaded with Congress to halt Nixon's "accelerating usurpation of power by the Executive branch . . . these wholesale executive invasions of legislative powers and responsibilities." He claimed the Republican President was creating a Constitutional crisis by ignoring a Democratic Congress. Senate Majority Leader Mike Mansfield (D-MT) shared this concern, stating that "the people have not chosen to be governed by one branch of government alone."
Nixon was ignoring Congress in four areas. First, he refused to spend money the Congress had appropriated for programs he didn't believe in, simply impounding the money. Second, he ignored Congress's efforts to get him to cut back or end the war in Vietnam, often increasing and widening the war when they were in recess.
Third, he regularly invoked executive privilege, thus denying Congress information it sought as aid in its job of conducting oversight of the Executive Branch. Fourth, finally, and in what was probably his most offensive act of the four, Nixon implemented a total reorganization of the Executive Branch by executive order. The result was to give Congress no say over departments and agencies that had years earlier been created by Congress.
Erosion Of Presidential Powers: Congress Takes Back Power Post-Watergate
Congress's anger at Nixon's chutzpah on stilts was one reason it so enthusiastically launched its investigation of Watergate. Congress exploited Nixon's vulnerability in self-defense. Had Nixon not crippled himself as President by overtly and criminally abusing his powers, it is doubtful Congress would have been able to regain its own powers, which had been earlier weakened by Nixon.
But with Nixon on the ropes, Congress passed new laws restoring the balance, while pursuing a series of oversight investigations of the Executive Branch that pried loose the governments best-kept secrets.
For example, Congress ultimately surfaced information that even Nixon had been unable to obtain from the CIA - the "family jewels" which included the bungled efforts to assassinate Fidel Castro.
Numerous New Laws Restore Congress's Powers
No new law was more important than the Congressional Budget and Impoundment Control Act of 1974, which Nixon was forced to sign (knowing his veto would be overridden) a month before leaving office. This law put Congress on an equal footing with the Executive branch in making budgetary decisions, and preventing a president from refusing to spend as directed by Congress.
Also - overriding Nixon's veto - Congress passed its War Powers Resolution, which was designed to force presidents to seek Congressional approval before for sending American troops to do battle. This law, which presidents dislike, reminds them that the Constitution gives Congress exclusive power to declare war (a point they have often ignored, but that still stands, as I have discussed in depth in an earlier column).
When the Watergate Special Prosecutor took Nixon to court with a very narrow subpoena seeking his secret Oval Office tapes of conversations with his aides about Watergate, the Supreme Court used the opportunity to write the law of executive privilege. It ruled against Nixon, and forced his resignation.
Afterwards, Congress proceeded to simply take all Nixon's tapes from him. That prevented any claim of privilege and precluded Nixon's ability to destroy them and the historical record. Congress also enacted a law that presidential papers belong to the American people.
Finally, Congress passed the Independent Counsel Law in the aftermath of Watergate. Through that now-expired law, Congress was able to instigate its own criminal investigations and prosecutions of high level Executive Department officials. Only because the law seriously gored the oxen of both Democratic and Republican administrations did Congress let it die.
After Watergate, Congress moved from its lowest power point back to a more normal posture vis-a-vis the Executive Branch. These laws represent the "erosion" of presidential powers that Cheney has witnessed, from both ends of Pennsylvania Avenue. In truth, they are more accurately described as a "restoration" of power previously stolen by Nixon from Congress.
Cheney's Criticism of the Iran-Contra Investigation
When Dick Cheney was a member of Congress, the Iran Contra scandal erupted. During the scandal, it should be recalled, Cheney became President Reagan's principal defender in Congress.
Cheney served as a minority member of the special Iran Contra Congressional committee investigating the violation by the Reagan administration of the laws prohibiting sale of weapons to Nicaraguan rebels. In 1987, the committee issued its final report - charging the Reagan administration with "secrecy, deception and disdain for law." But Cheney dissented.
In a telling rebuke, Cheney criticized the administration for letting Congress exert control over Central American policy, and banning the sale of weapons to Nicaraguan rebels.
Plainly, Cheney thinks presidents should not only execute the laws, but write them as they wish they had been. Never mind that Congress has passed a law the President has not vetoed, or as to which his veto was overrided. It is still up to him whether to abide by that law, Cheney seems to believe.
Cheney's Current Tactic: Block Congressional Information Requests
Cheney's drive to halt what he perceives as an erosion of presidential power has been most apparent in his effort to block Congress from obtaining information about Executive Branch activities.
Cheney is forcing the Government Accounting Office to go to Court to obtain even the most minimal information about the work of the Energy Task Force, forcing an unprecedented lawsuit which is currently pending. (I discussed the suit in depth in a prior column.) But this is only the most visible of Cheney's efforts; after all, he is a man who prefers to work behind the scenes.
I'm told by Washington journalists and scholars who daily seek information from the Executive Branch as part of their jobs and research, that making GAO file a lawsuit is merely the tip of the iceberg. Far more broadly, Cheney seeks to place a blanket freeze on information.
For example, provisions have been added to the USA PATRIOT Act, and appropriations legislation, that in effect create an unofficial "official secrets act." (An official version of such an Act was vetoed by President Clinton.)
Meanwhile, Cheney only extends his cheek in downplaying his own aggressiveness in creating a blanket of secrecy. It is the information-seekers themselves, according to the Administration, who are the aggressive ones. Thus, Dana Milbank of The Washington Post recently reported that "[i]n the fight over the energy documents, the Bush administration has made an ... argument that it is the victim." And the Vice President's lawyer is taking the position that Congress does not even have authority to institute legal action against the Vice President or President.
If GAO loses its lawsuit, that will virtually put Congress out of the business of oversight over the Executive Branch. (And even if it wins, Cheney will have successfully delayed disclosure.)
A court loss for GAO thus will mean that there are no real checks whatsoever on the President or Vice President - for it is impossible for Congress, or the public, to exercise oversight over that of which it is not even aware. Such a judicial decision may provoke as serious a constitutional crisis as Watergate - though this time the federal judiciary, not the President, would be at fault.
While I can't imagine such a decision being issued, I couldn't have imagined Bush v. Gore ahead of time either.
Cheney's Effort To Rearrange Government Is Misguided
My first reaction to Cheney's efforts to block access to his Energy Taskforce information was that he must want to hide the fact that the energy industry had virtually written the Bush administration's energy policy. By now, however, everyone knows that happened, so it is obvious there is something far more significant in play.
Cheney's efforts to block access to information appears more strategic than tactical. By that I mean Cheney is not fighting only a single, specific battle (to protect Energy Taskforce information). Rather, he has launched a war on Congress (forget the Energy Taskforce, Congress has no power to even request such information in the first place).
Cheney apparently wants to turn the clock back to the days of the Nixon administration, before Watergate, when Nixon sought to make Congress merely another administrative arm of the presidency.
Of course, because such a power shift would be strikingly Nixonian doesn't automatically mean it is evil. Not everything Nixon did was illegal, nor done without the public good in mind. But doing anything with Nixon as a model, or precedent, calls for the closest scrutiny, for Nixon had little respect for the mechanics of government.
Indeed, one of the reasons Nixon was attracted to foreign policy was that an American president is largely free from domestic constraints when he steps on the world stage. Nixon preferred unilateral decisionmaking, both on the domestic and international stages.
There is no question that Congress makes life difficult, sooner or later, for every president. Powerful arguments can be made that we have become what is, in essence, an administrative state, with the people selecting a new top administrator every four years. That may lead one to ask: Why not give the top administrator all the power and authority necessary so that he can most effectively administer the nation's affairs? This seems at the core of Cheney's contention.
Why Dramatic Expansion of Executive Power Is Profoundly Unconstitutional
Clearly Cheney wants greater powers for the presidency. There is only one problem, and it is spelled out in those sheets of parchment where the Framers laid out our system of government. They rejected monarchy, even a temporary king or queen. (George Washington had no interest in being a King.)
They also rejected even a single-branch system of democratic government, insisted on the checks and balances of two legislative houses and an independent judiciary. Our government derives its power from the people. That power is shared at federal, state and local levels, and further divided within branches at every level.
The men who designed this government did not have efficiency in mind. To the contrary, they divided the powers of government to make certain no one had too much power. They knew the cost would be delay, negotiation, and compromise, but they believed the expense modest for insurance against tyranny.
Cheney Opposes Even Limits on Presidential Power Meant to Curb Misconduct
Congressional and Executive power sharing has ebbed and flowed since the nation's founding. We have had periods when the Congress dominated, like that following the Civil War. Similarly, there have been times when the Executive dominated, as during the presidencies of Lincoln, Teddy Roosevelt, Woodrow Wilson and Franklin Roosevelt.
The erosions of presidential power that concern Cheney have all arisen from misconduct and abuses of power by the presidents involved: Nixon, Reagan, Bush and Clinton. That hardly makes a compelling basis for their restoration.
From this observer's point of view, Cheney's efforts are unnecessary. If anything, it is the presidency that has become too powerful. It is also misguided as a matter of political strategy. History shows that every time a modern president reaches for more power at the expense of Congress it ultimately raises Congressional ire. This brings inevitable repercussions, sooner or later.
Rather than the President's getting more done, he actually gets less accomplished. And given the fluke that put the Bush administration in power, Cheney hardly has a mandate for realigning power in Washington.
In Part Two of this series, I will continue this examination of efforts to reduce Congressional powers - this time focusing on limits imposed by the Supreme Court.
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THE ONGOING FIGHT BETWEEN THE SUPREME COURT AND CONGRESS, AS ILLUSTRATED BY THE GAO/CHENEY SUIT:
Part Two Of A Series On Shrinking Congressional Powers
By JOHN W. DEAN
---- Friday, Oct. 25, 2002
This is Part Two of a two-part series by Dean on threats to Congressional power from the White House and the Supreme Court during the war on terrorism. Part One appeared earlier on this site.Note: Since writing and posting this column I have learned more about the special attention being given this case by the Executive Branch. In fact, it is unique in the history of the Department of Justice. Normally, this case would have been handled by the Civil Division of the Justice Department. But this case is one of a select few being handled by a newly created special unit under the direction of Deputy Solicitor General Paul Clement. I've learned from high level sources in the Justice Department that the creation of this special trial unit has so offended career attorneys (who view themselves as professionals not partisans) that they have been quitting (which is a great loss of legal talent for the government). Not only is this nameless ad hoc group representing Vice President Cheney, but no less than the Solicitor General himself, Theodore Olson, was seated at the trial table in the Judge Bates's courtroom during the recent augment. Typically, the Solicitor General only appears before the U.S. Supreme Court. For the SG to appear in the U.S. District Court was clearly designed to send a message to the Judge of the unusual importance the Bush-Cheney Administration has given this case -- not to mention to prepare the SG for later arguing the case before higher courts. In Part One of this series, I described how the White House's expansion of executive powers has threatened Congressional powers. In this part, I'll discuss the way the Supreme Court is hampering Congressional power as well - and how it may continue to do so in an important pending lawsuit.The High Court's recent efforts to realign the Constitutional powers of Congress is old news to those who follow the Court. These precedents, which are slowly draining Congress's powers, pose a long-term and not an immediate threat. Each case has been but an incremental shift of the power plates along the fuzzy separation of powers fault lines.There is nothing incremental, however, about the Bush-Cheney White House's recent efforts to use the courts to literally chop off Congressional oversight authority of the Executive branch.The Supreme Court Versus Congress? The Federalism CasesIn the noble name of "federalism," the Supreme Court, under Chief Justice William Rehnquist, is on the warpath against the Congress. Not since the days of Republican Chief Justices William Howard Taft (1921-1930) and Charles Evans Hughes (at least during his early years) has the Supreme Court been more hostile toward Congressional power.This fact has been apparent since 1995. That was the year the gang of five (Rehnquist, Scalia, Thomas, Kennedy and O'Connor) began circumscribing the power of Congress to address national problems. Two of the main constitutional bases for Congress to take nationwide actions are the Commerce Clause and the Fourteenth Amendment; the Court has limited Congress's power under both. In addition, the Court has expanded the immunity of states from money damages, despite Congress's expressly providing such a remedy for plaintiffs who sue the states. Sadly, even the more moderate justices have not been hesitant to join in flexing the Supreme Court's - and the Judicial Branch's - muscle in denying Congress judicial assistance. The White House's Use Of The Courts To Impede CongressNow the White House is relying on these very anti-Congress precedents in its attempt to employ the federal courts - and ultimately the Supreme Court itself - to dramatically diminish Congressional power. Not content with the steady onslaught of anti-Congress precedents from the Court, the White House will prompt the Court towards an even more aggressive foray to expand executive, and contract legislative, authority. As I've discussed at length in a prior column, Vice President Cheney recently forced the General Accounting Office to file an unprecedented lawsuit, when he refused to provide any information about his National Energy Policy Development Group. Cheney put GAO to an impossible choice: Go to Court, or concede it did not really possess the fundamental powers Congress gave it. If Cheney can win and withhold the information requested, the consequences will be grave. To paraphrase the words of GAO's Comptroller General, David Walker, the Bush-Cheney Administration will have insulated the activities of the Vice President from scrutiny, violated the principles of transparency and accountability essential to a democracy, and decimated the oversight and investigative powers of Congress.This high-stakes lawsuit is now proceeding in the United States District Court for the District of Columbia, before Judge John Bates. It is difficult to imagine a more significant case for any federal judge, nor a hotter political issue to test judicial impartiality.Who Is Judge John Bates? Who is Bates? He was nominated by George W. Bush on September 4, 2001 and confirmed by the Senate on December 11, 2001. He barely had time to arrange the furniture in his chambers before Walker v Cheney arrived.Judge Bates's judicial record (and proclivities) are a blank slate. All that is known about him is his biography and his background. He is 55 years of age, and had an extensive career as a litigator. After Bush nominated Bates, he was deemed "well qualified" by the American Bar Association's Standing Committee on the Federal Judiciary, which is their highest rating.Bates was the long-time head of the civil division of the District of Columbia's U.S. Attorney's Office. During Independent Counsel Ken Starr's investigation of President Bill Clinton, Bates was detailed by the Justice Department to Starr's office, where he spent two and a half years before entering private practice.While working for Starr, he supervised the probe of Vince Foster's death, and the disappearing and reappearing billing records from Hillary Clinton's law firm. Bates is one of the few senior attorneys to emerge from the Starr office with his reputation intact. Even Bill and Hillary Clinton's friend and private lawyer David Kendall supported the nomination of Bates. Kendall found Bates "intelligent, straightforward, and ethical, ... not at all arrogant or abrasive," adjectives Kendall would be unlikely to apply to many on the Starr team.Those who know Bates well, including liberal Democrats, find him apolitical. Or "politically gray," as one said. That fact is reflected in his Senate confirmation vote: 97 to 0.Cheney v. Walker has been briefed and argued. It is now in the hands of Judge Bates for decision. But regardless of who prevails, the briefs and arguments make clear that Judge Bates will not have the final word, only the first word. Ultimately, the case will make its way up to the Supreme Court. The Pending Motion For Summary JudgmentThe Comptroller General of GAO filed an action for declaratory and injunctive relief. Translated into lay terms, that means he called on the Federal judiciary to compel the Vice President to hand over the documents about the energy task force that GAO was requesting. There were really no facts in dispute. Accordingly, and appropriately, GAO's lawyers - the general counsel's office of GAO, which is being represented in court by the Washington law firm of Sidley Austin Brown & Wood LLP - filed for summary judgment to resolve the legal issues.While GAO has openly posted its court filings, which are public documents, the Justice Department has not. Nonetheless, Findlaw has obtained copies of the Justice Department pleadings of this historic lawsuit. These include Cheney's initial brief and final brief in support of motion to dismiss, and his Response to Plaintiff's Statement of Material Facts. Anyone interested in the unfolding of an historic case should also peruse both the GAO memoranda in support of the motion for summary judgment and the Vice President's opposition papers.GAO's briefs are excellent, but I must say that the papers filed by the Vice President's lawyers are even better. But then the Vice President is able to retain the best appellate law firm in Washington - the Office of the Solicitor General of the United States. Cheney has bypassed the Department of Justice's Civil Division: Though it is on the briefs, the lawyers running the case are clearly from the SG's office.The Vice President's papers are superior in part because his attorneys are clearly building their case to take to the Supreme Court, realizing that is where this case will be resolved. Accordingly, they have drawn heavily upon holdings of the Rehnquist Court that are less than supportive of Congress.These holdings, predictably, were created by the Rehnquist Court's gang of five. Readers will also notice references to the Watergate era cases resulting from Nixon's refusal to provide information. Indeed, not since Nixon's days in office has a president worked harder to keep secrets and the operations of the Executive branch from public scrutiny. (As I commented in an earlier column, this is not the only parallel between the Nixon, and the current Bush, Administrations)A Supreme Court That Earlier Robbed Congress of Power, in Bush v. GoreRather than go through these briefs, which can be easily understood even by readers who are not attorneys, I merely wish to highlight and summarize what I find to be the Vice President's strongest and weakest arguments. On the whole, I find his collective body of assertions politically remarkable - nothing less than chutzpa on stilts and steroids. Yet that, of course, does not necessarily mean that they will fail. To the contrary, given the precedents being written by the Rehnquist Court, they may well prevail. Remember, this is a Supreme Court that had no reluctance to resolve the 2000 presidential election - which should have been resolved by Congress. That same Court obviously will not be shy about repealing a law that Congress wrote in 1921 - the law that implemented its investigative and oversight powers by creating the GAO. Nor will that same Court refrain from gutting Congressional power vis-a-vis the White House. While most have read Bush v. Gore as a 5 to 4 decision, in fact it was a 7 to 2 vote that resolved the election. Similarly, although most of the cases that have cut into Congressional power have been 5 to 4 decisions (involving the usual suspects), there have also been many 7 to 2 ruling against Congress. Those are the odds the GAO is facing in its attempt to avoid being thrown out of Court.The Strongest Argument By The Vice President Is On The Matter Of StandingStanding to bring a lawsuit is essential. "Standing" is the legal requirement that a particular plaintiff be the right plaintiff to bring the suit. Here, the standing question is whether GAO has the right to go to court to sue Cheney. (The right to sue in the first place is very different from the underlying right the suit will, if allowed to continue, adjudicate - here, the right to the documents requested.)Congress granted GAO power to file its lawsuit. Nevertheless, Vice President Cheney is arguing that, under existing Rehnquist Court precedents, GAO must be tossed out of court for lack of standing. The Vice President relies almost exclusively on Raines v. Byrd.The Crucial Precedent Of Raines v. ByrdRaines v. Byrd addresses the question whether six Members of Congress had standing to sue under the Line Item Veto statute. The question seemed a simple one: The statute expressly said that "[a]ny Member of Congress or any individual adversely affected by [this Act] may bring an action . . . ." But the Court held that despite this explicit grant of standing, no standing existed.The Court reasoned that the Members of Congress who had filed the suit should not have standing to sue because, according to the Court, they had suffered no real injury; the injury they claimed Congress had suffered was abstract; and Congress had other remedies (such as repealing the challenged law). The Court also pointed out that the Members had not been "authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit." Cheney's lawyers contend that the statute that authorized GAO to file its suit is similarly unconstitutional, under the precedent of Raines. The issue is crucial: if the Vice President is right, the case will be dismissed with prejudice for lack of standing. Cheney's Weakest Argument Is The Claim the Suit Is Not Authorized by StatuteCheney also argues that the GAO statute, which allows suit against the "head of [an] agency" does not allow suit against the Vice President. But this argument ought to be a loser.GAO has rather clearly established in its brief that Congress meant the term "head of [an] agency" to include the President and Vice President. Nevertheless, again relying on Rehnquist Court precedents, the Vice President claims that this is not enough: there must be a "clear statement" of GAO's authority before it can sue the Vice President. Cheney is apparently arguing the Vice President must be specifically listed to fall within the statute. This is pure legal sophistry. The legislative history could not be clearer as to Congress's intent. Indeed, the GAO law was amended precisely because Congress had problems in dealing with the White House.Cheney makes a similarly unpersuasive argument when he claims that Congress went too far in empowering GAO to "investigate all matters related to the receipt, disbursement, and use of public money" - including "the purpose, efficiency, and legality" of such uses. Unable to deny the obvious point that Congress has power to audit the "use of public money," he claims instead that not all uses of Treasury money are uses GAO can examine. To make their point, Cheney's attorneys distort and exaggerate what it is that GAO seeks by their lawsuit - listing examples of audits that GAO purportedly claims power to conduct, in order to horrify the court. For instance, they incorrectly claim that under GAO's reading of the statute, GAO could "review memoranda and meetings between law clerks and their judges in the guise of assessing their 'efficiency' and whether government pens and pencils could better be dedicated to other 'purposes,'" and could inquire into "whether and how often the President should hold Cabinet meetings, how long particular matters should dominate the agenda, and who should attend those meetings...."This parade of horribles is ridiculous, and misrepresents GAO's position. Clearly, Cheney's counsel know that Congress has every right to audit expenditures of federal funds. This argument should not be taken seriously - but the standing argument, I predict will be, and we may see it being made in front of the Supreme Court soon enough. This will be the real issue before Judge Bates: Can the Vice President use the standing argument to block the lawsuit? Even the Vice President admits the President has not yet claimed executive privilege for this information - and can do so if GAO prevails. So this is really a test as to whether Congress can use the courts to obtain information from the Executive branch without a subpoena. Let us hope, for the country's sake, that the courts - and ultimately the Supreme Court - say it can. John Dean, a FindLaw columnist, is a former Counsel to the President of the United States. | |  | | Guest | | | | Guest | | Posted: Thu Dec 12, 2002 2:18 am Post subject: |
| | cool | | | | Guest | | | | Guest | | Posted: Thu Dec 12, 2002 9:36 am Post subject: Court Halts Suit Vs. Cheney Task Force |
| Court Halts Suit Vs. Cheney Task Force
BY PETE YOST Associated Press Writer
WASHINGTON (AP) - The Bush administration succeeded Friday in temporarily stopping a lawsuit seeking documents about the inner workings of Vice President Dick Cheney's energy task force and its meetings with industry executives and lobbyists.
A federal appeals court indefinitely delayed Monday's deadline for the White House to produce task force documents or provide a detailed list of the documents it is withholding.
The two-page order said the court will schedule a date for arguments on whether to step into the case and consider the administration's request to put a halt to producing documents and providing testimony.
Two private groups, Judicial Watch and the Sierra Club, have sued, demanding the task force reveal documents about its meetings with industry representatives in formulating a plan that calls for expanded oil and gas drilling on public land and easing regulatory barriers to building nuclear power plants.
Government lawyers have argued the documents should be withheld because they are part of the deliberative process.
U.S. District Judge Emmet Sullivan originally sought the documents by Nov. 5, but extended the deadline.
The administration has been trying to persuade Sullivan to allow it to appeal his order to produce the documents. But Sullivan has said the administration has not shown adequate reason why he should turn the case over to the appeals court before a final judgment.
So the government is asking the appeals court for a writ of mandamus to consider the case.
Separately, the General Accounting Office, the investigative arm of Congress, is asking the task force to publicly release information about its meetings with industry executives and lobbyists.
U.S. District Judge John Bates is considering the administration's motion to dismiss the GAO lawsuit as well.
In courtroom arguments in September, Deputy Solicitor General Paul Clement said Congress has ways to seek the information other than relying on the GAO. Congress could subpoena them or seek information through the appropriations process, said Clement.
Carter Phillips, an attorney representing the comptroller general, argued that dismissing the case, as Cheney's attorney asked, would impede the GAO's ability to do its work as the investigative agency of Congress. | | | | Guest | | Posted: Thu Dec 12, 2002 9:41 am Post subject: Judge Rejects GAO Suit Over Cheney Papers |
| Judge Rejects GAO Suit Over Cheney Papers
--------------------------------------------------------------------------------
By Susan Cornwell
WASHINGTON (Reuters) - A federal judge on Monday handed Vice President Dick Cheney a major victory, dismissing an unprecedented lawsuit by Congress' investigative arm seeking the names of executives consulted by the White House on its energy policy.
The ruling by U.S. District Judge John Bates came in an historic courtroom clash between the executive and legislative branches of government.
For more than a year, the Bush administration had resisted requests from lawmakers and environmentalists to release the names of energy industry executives consulted by Cheney's task force in formulating its energy policy last year. Environmentalists said they were largely shut out of the decision-making process.
The head of Congress' General Accounting Office, Comptroller General David Walker, filed suit in February demanding Cheney hand over a list of the energy company executives who were consulted.
It was the first time the 81-year-old GAO had taken the executive branch to court over access to documents. Bates agreed with the Bush administration's arguments that Walker had overstepped his bounds.
The judge noted that neither house of Congress nor a congressional committee had authorized the GAO lawsuit or issued a subpoena for the information. Without such congressional endorsement, Walker lacked standing to ask the courts to resolve the constitutional dispute, Bates said.
"Such an excursion by the judiciary would be unprecedented and would fly in the face of the restricted role of the federal courts under the Constitution," the judge wrote.
WALKER MULLING APPEAL
Walker, who had argued that the GAO had the right to the documents as part of its congressional oversight of the executive branch, said in a statement that he was "very disappointed" with the judge's decision.
He said he would decide whether to appeal after reviewing the decision and consulting with congressional leadership from both political parties.
The White House was pleased. "We believe it's important for good decision-making that the president receives unvarnished advice," White House spokeswoman Claire Buchan said.
The Bush administration had argued that the GAO's request undermined the executive's ability to consult confidentially with outsiders about policy matters.
Cheney headed the energy task force that developed the energy policy announced in May 2001. It called for more oil and gas drilling and a revival of nuclear power.
The White House has acknowledge that Cheney and members of the task force met with representatives of Enron Corp. the energy trading giant that collapsed late last year amid revelations of secret deals that hid massive debts.
The two Democratic lawmakers who first asked the GAO to investigate the operations of the energy task force -- Rep. Henry Waxman of California and Rep. John Dingell of Michigan -- denounced Judge Bates' decision.
Waxman claimed the ruling was politically inspired, saying that Bates had been appointed to the bench by Bush.
"It is a convoluted decision by a Republican judge that gives Bush and Cheney near total immunity from scrutiny," Waxman said. He said it was "inconceivable" that an appellate court would uphold the ruling, but it was unclear whether there would be an appeal.
Dingell pointed out that it was unlikely the incoming Congress, with Republican majorities in both houses, would vote to subpoena documents from a Republican administration.
"Vice President Cheney's cover-up will apparently continue for the foreseeable future, unless a Republican Congress demands appropriate disclosure. I'm not holding my breath," Dingell said in a statement.
Constitutional scholar Bruce Fein said the new Republican-controlled Congress might even forbid the GAO to appeal.
But he said the ruling could make it harder for the Bush administration to fend off a similar lawsuit by Judicial Watch, a legal watchdog group that is demanding energy task force documents under a law on federal advisory committees. "It may make a judge more inclined to bend in favor of Judicial Watch," Fein said. | | | | Guest | | Posted: Thu Dec 12, 2002 4:58 pm Post subject: |
| Bye, bye, ignorant, murderous muslims.
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Pop the popcorn, grab a beer and enjoy ..
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Attention Muslims that want to support the destruction of
America.
Be afraid, very afraid ..... | | | | Guest | | | | *Mutt American | | Posted: Sun Dec 29, 2002 6:07 am Post subject: |
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