Court to enter fray over energy-policy task force

Supreme Court will hear case alleging that industry leaders played a key role that must be disclosed.

The US Supreme Court delivered a victory to the White House Monday by agreeing to enter the long-running dispute over whether Vice President Dick Cheney must publicly disclose details about the Bush administration's energy policy task force.

The administration's energy bill is stalled in Congress, but controversy over the alleged involvement of well-connected industry officials in the task force's work almost three years ago remains an open legal case - and a source of ongoing political debate.

The Supreme Court's decision to take up the case is important for both political and constitutional reasons. Even if a majority of justices rule against the White House, the Supreme Court action could help the administration keep the task force information under wraps for several more months and perhaps until after the 2004 election, analysts say.

"This is an extraordinary situation where the Bush administration is going to the Supreme Court to make sure that meetings that [Enron chairman] Ken Lay had in the White House aren't made available to the public," says Tom Fitton of the government watchdog group Judicial Watch. "That is what this is about: fear of political embarrassment."

In terms of constitutional law, the case could become a key test of the administration's expansive view of its presidential powers and its ability to exercise those powers free from the prying gaze of the courts, Congress, and the public. The case provides the court its best opportunity since the Watergate scandal and the presidency of Richard Nixon to more clearly define the scope of executive authority as it fits into the overall checks and balances among coequal branches of government.

Here's one indication of the political sensitivity surrounding the energy task force litigation: Among the federal judges who have ruled on the merits of the case, those appointed by Democratic presidents have consistently ruled against the Bush administration, and those appointed by Republican presidents have consistently ruled in its favor.

At issue in the legal case is whether the courts, Congress, or members of the public can force the executive branch to disclose information about the process by which the president receives advice on national policy matters.

Bush administration lawyers say the advisory process is within a constitutionally protected sphere of presidential authority. Critics of this position say the Bush White House is attempting to establish an imperial presidency. "We are hoping that the Supreme Court is going to use this case to remind the vice president that he is subject to the law," says David Bookbinder, a lawyer with the Sierra Club Environmental Program who has been active in the case.

The White House position on the energy task force, analysts say, is similar to the position taken by administration lawyers seeking to block judicial inquiries into the designation and holding of so-called enemy combatants. It is also consistent with a White House preference for secrecy over public disclosure, they say.

Vice President Cheney has long been a champion of restoring what in his view is the full measure of power to the executive branch. He says he is taking a principled stand to that end.

The issue arises in two lawsuits (one filed by Judicial Watch, the other by The Sierra Club) seeking disclosure of information related to the energy task force headed by Cheney.

The lawsuits were filed after press reports suggested that private individuals from the energy industry participated extensively in the task force's work. The suits argue that industry participation was extensive enough to make them de facto task force members.

That determination of de facto membership is critical because, if true, it could trigger a public disclosure provision within the Federal Advisory Committee Act. But the same law also says that presidential advisory groups made up entirely of government officials are not subject to public disclosure requirements. The official task force roster suggests an all-government composition.

The General Accounting Office, the investigative arm of Congress, filed the first lawsuit challenging the committee's refusal to release details of industry involvement. The suit was thrown out by a federal judge in 2002. The GAO did not appeal.

The Judicial Watch-Sierra Club suits were consolidated, and that suit was upheld by a different federal judge who ordered the White House to disclose the information. A divided appeals court panel agreed.

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