WASHINGTON — The Supreme Court on Tuesday will consider whether Vice President Cheney must release internal documents that detail the membership of a task force that met privately while helping to form President Bush's energy plan.
Vice President Cheney is fighting two groups' attempt to find out who was on the White House's energy task force.
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Congressional Democrats and environmental groups have said that the energy plan, which was announced nearly three years ago, placed too much emphasis on increasing production of fossil fuels such as coal and natural gas, and not enough on conservation.
The critics have complained that the administration invited energy industry leaders and big Republican campaign donors to take part in the task force but excluded people who would have opposed Bush's emphasis on energy production. The case that comes before the justices reflects increasing public concern over government secrecy and the stealthy influence of wealthy lobbyists.
The case also arises amid increasing election-year rhetoric: Democrats have tried to use Cheney's resistance to disclosing the records to complain about an overall pattern of secrecy shrouding administration actions, and to suggest that the White House secretly devised a plan to appease its friends in the energy industry.
Justice Department lawyers are appealing a lower court order that would force Cheney to disclose some documents about the internal workings of the task force — which is known as the National Energy Policy Development Group — so that its true membership can be determined. The task force was set up by President Bush soon after he took office in 2001. It was officially made up of certain Cabinet officers and agency heads.
In the consolidated lawsuit now at the high court, Judicial Watch, a conservative watchdog group, and the Sierra Club, a liberal environmental organization, allege that by adding private citizens as unofficial members, the task force fell under the Federal Advisory Committee Act (FACA). The act requires such government committees to make their membership "fairly balanced in terms of points of view" and to hold meetings in public.
U.S. District Judge Emmet Sullivan ordered Cheney and other officials to turn over certain documents that would reveal whether private citizens had participated in meetings to the point that they effectively became members of the task force and triggered the FACA requirements.
Cheney refused to comply with the order. Government lawyers argued that to make even preliminary disclosures would violate the constitutional separation of powers between the executive and judiciary branches.
Last year, the U.S. Court of Appeals for the District of Columbia Circuit spurned a Cheney appeal and refused to interfere with the order.
In a 1993 controversy over the health care task force led by first lady Hillary Rodham Clinton, the D.C. court said that FACA requirement can apply to such a task force if private citizens have significant roles in it.
The Bush administration rejects any comparison between the two task forces. It says the Clinton health-care group "expressly included non-governmental advisers" but the Cheney energy task force was "categorically established by the president to be composed exclusively of government officials."
The question in the Cheney case is whether the lower court's order treads on executive power.
"This case presents fundamental separation-of-powers questions," U.S. Solicitor General Theodore Olson said in his brief to the justices. Olson says that judges should not be able to force the president or vice president to reveal with whom they met. He said "the president's ability to communicate freely with ... advisers" is at stake.
Olson said that the FACA law should be interpreted to ban the disclosure of the task force's internal documents and that "if FACA does require the kind of judicial inquiry approved by the courts below, then it is unconstitutional."
Washington lawyer Alan Morrison, who will represent the Sierra Club before the Supreme Court, countered in a speech last week that "the American people have the right to know if private individuals in effect become government officials."
In his legal brief, Morrison said the Supreme Court should find that no grounds exist to intervene at this early stage of the dispute over the energy panel's deliberations.
The document request, Morrison says, is for "the basic information needed to determine ... whether non-government persons participated in the work of the task force and ... to what extent."
Washington lawyer Paul Orfanedes, who works for Judicial Watch, will represent that group. He said in his brief to the justices that Judicial Watch is seeking only the information needed to determine whether private individuals were on the task force.
The group characterizes the disclosure ordered by the lower courts as minimal and says it would not disrupt the usual separation of the branches of government.
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