Low Energy

Should Cheney be required to come clean about his energy task force? The Supreme Court considers.

| Tue Apr. 27, 2004 3:00 AM EDT

The U.S. Supreme Court today considers whether Dick Cheney should be required to release documents from the energy task force he headed in early 2001. The court's decision, when it comes, will define nothing less the limits of executive privilege in formulating public policy.

Two groups, the Sierra Club and Judicial Watch, which have won lower court rulings against Cheney, want the documents released in order to determine what role energy industry lobbyists played in drawing up Bush administration energy policy. The fruit of the task force's labors, of course, was a national energy prescription -- the National Energy Policy -- long on generous incentives for fossil fuel producers and notably short on conservation measures. Not coincidentally, environmental groups were excluded from the process. The obvious inference is that energy lobbyists essentially wrote their ticket, but we can't be sure unless and until the documents are released.

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The import of the case goes beyond energy policy, though. As USA Today notes, "the case that comes before the justices reflects increasing public concern over government secrecy and the stealthy influence of wealthy lobbyists."

Cheney has defended the secrecy of the task force's proceedings against all comers -- including, of course, the General Accounting Office -- on the grounds that there exists a constitutionally protected "zone of autonomy" for presidential advice received in the ordinary course of proposing legislation. As Solicitor General Theodore B. Olson's brief asserts, "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."

He continues:

"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."

The case, says the Times' Linda Greenhouse, dovetails with the detainee-related cases also before the court this month.

"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.

Just as the administration is arguing in the detainee cases for the exercise of presidential authority without judicial interference in policies related to the war on terrorism, it is making sweeping claims in the energy case for the existence of a constitutionally protected 'zone of autonomy' for presidential advice received in the ordinary course of proposing legislation."

The Bush administration argues that Congress's 1972 Federal Advisory Committee Act, which mandates that task forces must operate in an open manner, does not apply in this case because the energy task force meets the requirement for the law's exemption -- that all of its members were federal officials. On top of claiming the non-applicability of the law, the Bush administration contends, for good measure, that the law itself is unconstitutional. Judicial Watch and the Sierra Club argue that the industry representatives, for the purposes of the energy policy formulation, acted as "de facto members" of the task force.

That the energy lobby has benefited handsomely from the work of the energy task force is indisputable. While the president talked about hydrogen-fuel cells and other research that would fundamentally transform our energy policy, the task force drafted a plan that reinforces the nation's reliance on oil and natural gas, with obvious consequences for the environment and foreign policy. As Foreign Policy in Focus points out:

"The single most important step proposed ... was increasing domestic oil production by drilling in the Arctic National Wildlife Refuge (A.N.W.R.), an immense, untouched wilderness area in northeastern Alaska. While this proposal has generated enormous controversy in the United States because of its deleterious impact on the environment, it also has allowed the White House to argue that the administration is committed to a policy of energy independence. However, careful examination of the Cheney report leads to an entirely different conclusion. Aside from the A.N.W.R. proposal, nothing in the N.E.P. would contribute to a significant decline in U.S. dependence on imported petroleum. In fact, the very opposite is true: The basic goal of the Cheney plan is to find additional external sources of oil for the United States."

(Sidenote: The Boston Globe reported yesterday that Andrew Lundquist, the former executive director of the energy task force, is currently lobbying Congress to pass the very legislation that he has drafted -- another example of this administration's cozy relationship with big oil and gas.)

No one is questioning the right of the government to consult with oil and other companies on matters of energy policy (though environmental groups, which Cheney did not deem it necessary to consult, should be involved as well). But that's beside the point. Cheney's refusal to hand over the documents only fuels speculation that the energy lobby was not simply consulted, but was part of the task force, and that the White House is using executive privilege to cover up its wrongdoings.

Troublingly for the Supreme Court's credibility, Chief Justice Antonin Scalia, an old friend of Cheney's -- who infamously went duck-hunting with him a few weeks after the case was referred for the Court's consideration -- has refused to recuse himself from the case. Scalia sees no conflict of interest and said that:

"If it is reasonable to think that a Supreme Court justice can be bought so cheap, the nation is in deeper trouble than I had imagined."

In any case, Scalia went on:

"Many justices have reached this court precisely because they were friends of the incumbent president or other senior officials."

The question in front of Scalia and the other Justices is whether the public has the right to know if energy lobbyists -- also, big "friends of the incumbent president" -- effectively sat on what was supposed to be an all-government task force.