After two years of delays and having lost two rounds in lower courts, Cheney is about to face the final test in his quest to keep private his records of work on a national energy strategy.
Cheney Secrecy Case Goes to High Court
The executive branch’s argument in this battle is that forced disclosure of confidential records intrudes on a president’s power to get truthful advice. The questions (pdf file) they’re asking the Supreme Court to answer are
Whether the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 1, §§ 1 et seq., can be construed, consistent with the Constitution, principles of separation of powers, and this Court’s decisions governing judicial review of Executive Branch actions, to authorize broad discovery of the process by which the Vice President and other senior advisors gathered information to advise the President on important national policy matters, based solely on an unsupported allegation in a complaint that the advisory group was not constituted as the President expressly directed and the advisory group itself reported.
and
Whether the court of appeals had mandamus or appellate jurisdiction to review the district court’s unprecedented discovery orders in this litigation.
The argument of the groups pressing the matter, Judicial Watch and the Sierra Club, is that the public should be able to see what influence energy industries had in outlining our national energy policy.
On June 25, 2001, Respondent Judicial Watch, Inc. (“Judicial Watch”) sent a letter to Vice President Cheney, pursuant to the Freedom of Information Act (“FOIA”) and FACA, 5 U.S.C. § 552 and App. 1, et seq., requesting copies of all minutes and final decision documents of NEPDG meetings, as well as a complete listing of all persons and entities that participated in NEPDG meetings. J.A. 30-31. Judicial Watch also asked to attend any future meetings of the NEPDG and requested contact information and a schedule for such meetings. J.A. 31. On July 5, 2001, Judicial Watch’s request was denied.
In a nutshell, Judicial Watch argues that “The meetings and records should be public…because private individuals, including lobbyists and energy company officials, participated in the task force deliberations, triggering the federal open meetings law.”
As with so many of the PR problems this administration has, this case boils down to arrogance. Had Cheney included more environmentalist in his meetings (meaningfully, I mean, not just for photo ops) this would have never gotten to this point. He could have completely dismissed their advice in his final recommendations to the President if he thought that best served the nation, but to exclude them from the discussions and refuse to release the records was to invite the perception that something underhanded was going on behind closed doors.
OK…enough evenhandedness…
Personally, I see Cheney as totally aligned with Industry. I believe he’d throw the nation to the wolves in a heartbeat…that he doesn’t give a rat’s ass about the environment…and that he’s so arrogant he’s taking this up to the Supreme Court just to prove he can.
As Paul Krugman points out in today’s column:
George Bush and Dick Cheney are only two of the many members of the administration who grew rich by relying on the kindness of energy companies. Indeed, the day after the executive director of Mr. Cheney’s task force left the government, he went into business as an energy industry lobbyist.
By the way, you really have to read Krugman today…he’s much more damning than this quote indicates.
I also believe Scalia cannot be trusted to judge impartially in this case and should recuse himself.
Did I mention I think Cheney’s a stinker?
OK…enough mindless ranting….
Can anyone imagine a scenario for which secrecy here brought about better advice for the President in this matter?
Can anyone imagine a scenario for which secrecy here brought about better advice for the President in this matter?
Depends on your definition of “better”, doesn’t it?
On a recent thread on Kevin Drum’s blog, a right-wing commentator said he didn’t object to Bush having been proved to lie to the nation about WMD in Iraq, because it was obvious Bush had been “forced” to lie by the anti-war left, who were unwilling to have a “rational debate”. (cite)
I can see a very similar argument being made for the reason why Cheney just had to keep these records secret: because “the left” would have claimed that Cheney’s involvement with the energy industry disqualified him from having such input into it. If you start off from the presumption that the advice the President got was good, and the decisions it led to were the only decisions that could have been made, and if a public debate would have meant he got different advice leading to different decisions/policy, then obviously it was better not to have a public debate.
Did I mention I think Cheney’s a stinker?
You may have done. I think he reeks to high heaven, myself.
I believe Vice-President Cheney is trying to save America by refusing to open these files. What if there is sensitive information about oil and gas reserves or top-secret windmill technology? This could give our enemies data that could hurt us. Why does the Sierra club hate America?
A great resource: NRDC files on the Energy Task Force.
The important point here is that Cheney specifically set it up in the way that he did, with only public officials on the committee, so that he could avoid public scrutiny. He then went on to include satellite meetings with industry officials “around” the committee, thus violating the spirit if not the letter of the law.
This is all very Cheney.
After all, he was the one who, along with Rumsfeld, set up a totally, completely extra-Constitutional “continuity-of-government” scheme as a Congressman in the 1980s.
Bottom line is, the man thinks he is above the law, and has great contempt for those who follow it.
NKVD Firing Squad
The Fascist Fighting Fusileers continue their propagandizing. Come comrades, do you want to give to evil US Marines to build TV station to compete with al Jazeerah? Mike at Miniluv tries to pretend he is something other than Anti-People’s Reactionary….
I don’t, like some liberals, believe that Republicans hate the environment and want to see it shriveled up into a brown, dessicated husk criss-crossed by rivers of blood and fire. Generally they have other priorities, or other ideas about meeting valuable goals, such as in Sebastian’s excellent recent post. I’m perfectly willing to believe that of Cheney, though, or that the mysterious explosions from his compound was the construction of the first of a line of giant, killer Cheney-bots. It would jibe with his record in theme, if not for the Flash Gordon tone.
Unfortunately, if Cheney wins, especially by a 5-4 vote, Scalia loses, and the Supremes take another hit on the credibility front.
Maintenance of an impartial Supreme Court ought to be the goal of both sides of the aisle.
Unfortunately, if Cheney wins, especially by a 5-4 vote, Scalia loses, and the Supremes take another hit on the credibility front.
And for that reason alone, he should recuse himself, no?
I despise Cheney, and I despise Rehnquist,and I hope Cheney loses this case, but I think the arguments against recusal are reasonable.
It seems like only yesterday, by the way, that I posted this, which included this, about Brown v. Board of Education:
Oh, yeah, it was only yesterday.
In a vaccuum, Gary, I’d agree about the “reasonableness” of Scalia’s agrument on not recusing himself. However, given the timing of this case (so close to the election), I think JKC is right…if it’s 5-4 and Scalia sides with Cheney, it’s not going to look too good for the court.
I agree: let’s hope, then, that Cheney loses for the good of the Supreme Court, as well as for every other reason for it.
And for that reason alone, he should recuse himself, no?
No he shouldn’t, because the question is about the office of the Vice President, as compared to Dick Cheney.
But if you want to talk about recusal, the 9-11 Commission comes to the fore.
What credibility? Bush v. Gore destroyed it, at least for three justices. The injunction made credibility a roaring joke for one. (My own position is that political messes like Florida should be dealt with in legislatures, with US Congress being ultimate arbiter).
Scalia is a historical figure, of brilliance, intellectual integrity, and political and moral corruption rarely matched in the court’s history.
Heck, I think even “strict construction” and “original intent” have been destroyed by this court, in the copyright case. Unless someone seriously wants to defend their interpretation of the word “limited”.
And for that reason alone, he should recuse himself, no?
No he shouldn’t, because the question is about the office of the Vice President, as compared to Dick Cheney.
I’m beginning to rethink the implications of my stand there Timmy…even before your comment.
Scalia is damned if he does and damned if he doesn’t, so I guess for the precedent’s sake he should not recuse himself. The court’s integrity being more important than one or two men’s reputations. Having said that, I repeat “Cheney’s a stinker” and Scalia’s not much better.
The court has integrity?
Can we distinguish between the actions of the VP as VP and the person who happens to currently _be_ the VP that easily? I wonder.
Ceci n’est pas un vice-président.
(My own position is that political messes like Florida should be dealt with in legislatures, with US Congress being ultimate arbiter).
Mine to, but only two justices wanted to take this position, notwithstanding that it is outlined in the Constitution that this is not a matter for the courts.
Well done bob.
sorry I was too busy screaming at the top of lungs back then to notice Timmy, which two justices supported Plan B?
Eddie, I don’t remember exactly, except that they were on the five side of five to four decision
You could examine here.
Or here.
I’m not clear precisely what Timmy The Wonder Dog is referring to.
Thanks Gary,
Looks like the ones who thought the SCOTUS had no business in that mess were Souter and Breyer (if I’m reading that right, which, given that it’s written in Ancient High Gobblygoop, is entirely unlikely):
Is that what you were referring to Timmy? If so, weren’t they dissenters from the final decision? Legaleese is just like math…it makes my brain shut down in self-defense…
I don’t think that Timmy can be referring to Souter and Breyer, Edward, since: a) they were two of the four dissenters, not of the five majority votes; b) their stance was that the Florida Supreme Court should proceed. I suspect from what I’ve read of Timmy that that is not what his preference was.
I could be wrong, of course; I’ve not read a huge body of Mr. Dog’s work. (Sorry, is that “Mr. Wonder Dog”? I need a style sheet, people.)
(Sorry, is that “Mr. Wonder Dog”? I need a style sheet, people.)
Will Baude at Crescat Sententia says first name is always acceptable, except for Mr Volokh, or in case you want to force formality for effect, Mister Farber
At Tacitus, his friends call him “Poochikins”
Got to add:
Eugene Volokh has, if I read him right, received a supoena from a Canadian Court for a *comment* he posted on a blog. Like, wow.
So I take back the “Poochikins” It was a lie.
Is that what you were referring to Timmy?
No, it wasn’t incorporated into an opinion, rather two Justices took the position that Article 2 Section 1 of the Constitution should be used to stop the FL Supreme Court cold in their interferrence in a presidential election. The Supremes had no standing in this coflict be they state or federal.
The Constitution is clear that courts play no role and resolution of presidential election problems belong to the legislature (state then federal). Gore v Bush should have been decided along these lines pure and simple.
I believe Timmy’s got a pretty solid point here, although I can’t recall exactly what part of Florida statute was trampled on by SCOFL. And no, I’m not going to defend myself on this; if you’re looking for more discussion on this already well-flogged issue, you’re going to have to self-service.
Some may look at it like SCOTUS awarded Bush the election, which is inaccurate from a number of different perspectives. I look at it like SCOTUS stepped in and prevented SCOFL from gift-wrapping the election for Gore.
“I look at it like SCOTUS stepped in and prevented SCOFL from gift-wrapping the election for Gore.”
Gore never had a shot. It is the Florida Legislature’s right and duty to clear up confusion with an appointment of electors, and such was in the works. If it was thought unjust, then the US Congress had the right and duty to correct the error of the Florida legislature.
The Florida court may or may not have had the jurisdiction to oversee the elections, but since it had ordered a recount in every county, Scalia’s injunction was not justified on any equal protection grounds, and was simply despicable. Let Gore get a few thousands votes ahead. 90% of the country would have said:”Unclear” and let the proper process take its course.
If the Florida Supreme Court had overstepped its bounds, it was never never in SCOTUS jurisdiction to correct it. Only in the most extreme circumstances should SCOTUS get involved in state election law. It was a horrible precedent.
If the Florida Supreme Court had overstepped its bounds, it was never never in SCOTUS jurisdiction to correct it.
a quick retort, see Article 2 Section 1 of the US Constitution, no problem with SOTUS stopping the FL Supremes in a situation where they have no standing. Don’t forget we are talking about the one and only Federal election.
Gore never had a shot.
Now I’m at a loss to see what everyone was upset about.
It is the Florida Legislature’s right and duty to clear up confusion with an appointment of electors, and such was in the works.
This wasn’t about the appointment of electors, it was about ballot-counting.
If it was thought unjust, then the US Congress had the right and duty to correct the error of the Florida legislature.
Wrong. The US Congress has even less business sticking its nose into the affairs of Florida than SCOTUS did. If SCOFL hadn’t stepped all over the Florida legislature, SCOTUS wouldn’t have had to do anything at all.
Only in the most extreme circumstances should SCOTUS get involved in state election law.
Exactly my point. Actually, it wasn’t state election law that SCOTUS got involved in, it was the improper intervention of SCOFL that had SCOTUS involve itself.
I look at it like SCOTUS stepped in and prevented SCOFL from gift-wrapping the election for Gore.
Yeah – god forbid the candidate who got most votes should win the electoral college! (Which was Al Gore, as was underreported October 2001.) Jeb Bush had already gift-wrapped the election for his brother: how dare SCOFL step in and say the people of Florida who voted should get to decide who got the electoral college votes! Everyone knows it’s the Governor who decides… at least when both Governor and Presidential candidate are Bushes.
Yeah – god forbid the candidate who got most votes should win the electoral college!
Well, the candidate who got the most votes in Florida did get the electoral vote there. Do you have something that says otherwise, that I can’t show you a half-dozen cites to the contrary?
Jes, get over it, the Electoral College is what elects the President same system since the very start of this Republic.
Then read the Consitution and understand that it is the legislature which decides not the guv or the supremes. And if the Florida couldn’t get its act together than the election of the president reverts to the House and the VP to the Senate.
I believe, Timmy, that the Florida legislature was set to appoint electors whether the recount was complete or not. At that point, the US Congress would have nothing to say in the matter. It’s possible that this is why SCOFL stepped in to begin with, but I’ve really got nothing to call a theory.
Slartibartfast: Well, the candidate who got the most votes in Florida did get the electoral vote there. Do you have something that says otherwise, that I can’t show you a half-dozen cites to the contrary?
“But if the recount had been held under new vote-counting rules that Florida and other states are adopting – rules aimed at recording the inten tions of as many voters as possible – Democratic candidate Al Gore probably would have won, albeit by an even thinner margin, the study found.
It provides evidence that more Florida voters tried to vote for Mr Gore than for Mr Bush, but so many Gore voters marked their ballots improperly that Mr Bush received more valid votes.” cite, cite.
Now, voting machines can be set either to spit back an improperly filled in ballot, giving the voter an opportunity to vote correctly, or to swallow a ballot regardless of whether it has been properly filled in.
Greg Palast (The Best Democracy Money Can Buy) documented how in Florida, certainly at the 2000 election, voting machines had systematically been set to swallow ballots and not return them in districts where a predominately Democratic vote was expected. Hence the number of “improperly filled in ballots” for Al Gore.
The majority of voters in Florida who voted, voted for Al Gore.
However, SCOTUS awarded the election, by a 5 to 4 majority, to the loser.
“The US Congress has even less business sticking its nose into the affairs of Florida than SCOTUS did.”
You did not believe I was so ignorant as to think Congress would step in *during* the election. I, of course, meant during certification. At which it has every business sticking its nose in.
Interesting thought, in terms of constitutional principle, are there any limits at all to the Congressional certification of electors? Could an extremely partisan Congress simply de-certify all electors, throwing the election into Congress, and reverse the results?
“But if the recount had been held under new vote-counting rules that Florida and other states are adopting – rules aimed at recording the inten tions of as many voters as possible – Democratic candidate Al Gore probably would have won, albeit by an even thinner margin, the study found.
You know better than this. Ex post facto laws don’t apply.
I, of course, meant during certification. At which it has every business sticking its nose in.
Ok, you got me. What do you mean by “certification”, and what would be the reason Congress would stick its nose in? And what form would that take?
Greg Palast (The Best Democracy Money Can Buy) documented how in Florida, certainly at the 2000 election, voting machines had systematically been set to swallow ballots and not return them in districts where a predominately Democratic vote was expected. Hence the number of “improperly filled in ballots” for Al Gore.
I’ve read Palast, and I find that he has every bit as much inclination to present assertion as fact as…some other people I know. I do know that the districts that had the most difficulty with over/undervotes were run by elections supervisors who were overtly Democrat, and so the question of how those machines were tampered with needs to be addressed.
And, see, with just as much evidence in fact, I can claim that it was the Democrats who did the tampering, and unfortunately for them they did it ineptly.
Article II, Section 1
“The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” etc etc
It was discussed during Florida, what the procedure would be if two sets of Electors were sent to Congress. That is not specifically in the Constitution, but procedures have been written in an 1876 law. (I think; maybe 1880). Basically, any set of electors can be challenged, the houses separate for debate and vote based on 1 vote per state per house on which set of electors should be accepted.
They can also, in theory, simply choose to challenge a set of electors, and by vote as above, simply discard a state’s input into the election. And keep going until no majority exists.
I think.
As in impeachment, Congress has the final word on who the President is.
“It remains to be seen whether this challenge to Mr. Cheney’s status as a Wyoming inhabitant will be entertained by a court or, rather, be deferred to congressional resolution as a possible objection to an electoral college vote from Texas.”
An example from a discussion at jurist.pitt.edu
still googling
Slarti: I find that he has every bit as much inclination to present assertion as fact as…some other people I know.
I didn’t know you knew George W. Bush!
You know better than this. Ex post facto laws don’t apply.
You’re answering a non-point.
The majority of voters in Florida who voted, voted for Al Gore. Even with the 50 000+ voters illegally removed from the electoral rolls, overwhelmingly black and therefore demographically likely to vote Democrat… George W. Bush lost, by the basic democratic reckoning of counting each vote.
1887 Law
Not really the law, but a Dem brief on the law
“Following the fiasco of 1876, the United States Supreme Court lost legitimacy in the eyes of the American public that took several decades to rebuild. In 1887, Congress, determined never again to delegate away to federal judges its Constitutional authority (shared with the States) to be the final arbiter in close Presidential elections”
And based on this alone, SCOTUS should not have compounded whatever error SCOFL had committed. The precedents and procedures were sufficient. Scalia sucks, a partisan and unnecessary intervention
We kinda ran off topic here, I guess.
Back on topic, it looks like Cheney is going to win his case
Justices Appear to Support Cheney Task Force Secrecy
I need a drink…
bob: We kinda ran off topic here, I guess.
We did. My bad. Apologies. (Though I checked back and you were the first person to mention the F- word…)
Edward: I need a drink…
Me too. Large buttered rum.
Extra cherries?
The majority of voters in Florida who voted, voted for Al Gore.
Please. Let me know when an analysis of all certified ballots in Florida says that, ok?
Edward, be comforted by the fact that concluding how the Court will rule based upon oral questioning is extremely unreliable; if it weren’t, they could just all take a vote then and there; that’s not how it works.
skip the cherries…just give me the bottle…
This administation is like some bad dream you just can’t wake up from…it’s as if they spend hours sitting around figuring out what else they can do to horrify me…I know that’s not the case, but they couldn’t succeed any more than they do if it were.
This administation is like some bad dream you just can’t wake up from…
Minus the ellipses, Edward, I’m with you all the way.
For the past three and a half years, front page stories from The Onion have been turning into regular news reports with a time-lapse of about six months or less.
Pass the bottle.
hmmmm.
Both Gary and Jesurgilac now objecting to my beloved ellipses. Guess I’ll have to endeavor to restrain myself
………or not……….
For the past three and a half years, front page stories from The Onion have been turning into regular news reports with a time-lapse of about six months or less.
It’s funny, ’cause it’s true.
The gerrymandering case decided today also makes me unhappy.
Bob’s Summation:Fed Courts have almost absolutely no reason to get within twenty miles of partisan gerrymandering complaints. “Almost absolutely” because Kennedy had a bad hair day.
Maybe the correct decision, but the partisan gerrymandering incumbent protection program sucks, and I see no way to get out of it.
I hate to see people sad. Here’s a recent Leno joke for you:
“President Bush’s campaign is now attacking John Kerry for throwing away some of his medals to protest the Vietnam War. Bush did not have any medals to throw away, but in his defense he did have all his services records thrown out.”
What do you know? That did cheer me up, especially this one
Sept. 11 Could Not Have Been Prevented Without Accruing
A Lot Of Overtime, By Condoleezza Rice
I’m still chuckling.
thanks Gary.
Also: this.
I WOULD LIKE TO KNOW WHAT CHENEY IS HIDING !! BUSH MUST HAVE PULLED SOME STRINGS SO THIS STAYS UNDERWRAPS UNTIL AFTER THE ELECTION ! i GIVE IT MAYBE 2 YEARS AND THE TRUTH WILL COME OUT ABOUT BOTH BUSH AND CHENEY AND WHEN IT DOES, WHAT NIXON WAS ACCUSED OF WILL LOOK LIKE ‘SMALL POTATOES’ .