Victory For The Executive
Bush and Cheney have recovered lost ground.


For a Supreme Court that takes a fairly expansive view of its own powers, the decision in Cheney v. U.S. District Court presents an interesting–and puzzling–exercise in judicial restraint. On one hand, the Court, by a wide margin, excoriated the lower courts for letting a lawsuit run amok, and concluded that wide-ranging demands for disclosure of information by the vice president and senior administration officials were “anything but appropriate.” But on the other hand, the Court’s decision did not address the merits of the vice president’s central claim that any judicial relief under the circumstances of the case would amount to an unconstitutional encroachment on the power of the presidency. Instead, it merely ruled that the lower courts had improperly refused to consider that claim and sent the case back to the court of appeals for another chance to get it right. Nevertheless, the decision is a substantial victory for executive authority.

A little context is required here. In the first days of the Bush administration, the president assembled several of his senior advisers–including the vice president, senior White House staff, and Cabinet officers–and asked them to develop a comprehensive energy plan. That group met several times and also gathered input from the private sector, including–not surprisingly, given its task of developing a national energy plan–representatives from the energy industry. In May 2001, it presented a comprehensive plan to the president. That plan was released to the public at the time and formed the basis of the president’s proposed energy legislation, which has since languished on Capitol Hill.

In late 2002, Sierra Club and Judicial Watch, two “public interest” groups, brought separate suits against Vice President Cheney and the senior government officials who made up the National Energy Policy Development Group (NEPDG). They brought the case under the Federal Advisory Committee Act (FACA), a Seventies-era blue-ribbon committee statute that imposes substantial disclosure obligations on advisory committees made up of nongovernmental officials. Those suits claimed, based on little more than scattered news stories and speculation, that the vice president and other government officials violated FACA because, in conducting the business of the NEPDG, they met with several energy-industry executives who, as a result of their participation, became de facto members of the committee. Because FACA applies to any federal advisory committee established or utilized by the president and made up of nongovernmental officials, plaintiffs contended that the participation of de facto members required compliance with FACA. Thus, plaintiffs sought disclosure under the federal statute of all of the documents of the NEPDG.

The government moved to dismiss the case, arguing that the president and vice president had the constitutional authority to obtain advice on important policy matters in confidence and therefore that a federal law requiring disclosure of the details of such advice would be unconstitutional. The district court denied that motion, concluding that plaintiffs had the right, through the discovery process of litigation, to determine whether the NEPDG complied with the federal law–that is, whether or not it in fact had members who were not government officials. Although the government resisted disclosure of that information, the district court ordered it to either release all information relating to the group’s meetings, both within the government and with members of the public, or formally invoke executive privilege to prevent disclosure of the information.

It was that ruling that led to the government’s appeal to the Supreme Court. But before the issue got to the Supreme Court, it was heard by the U.S. Court of Appeals for the District of Columbia circuit. A divided panel of that court rejected the government’s appeal, reasoning that the court lacked the authority to hear the case before it because the president had not formally invoked executive privilege. According to the majority decision, it was only when and if a lower court rejected the president’s invocation of that special constitutional privilege that the court of appeals would have the ability to consider the president’s (and vice president’s) constitutional claims.

In a 7-2 opinion authored by Justice Kennedy, the Supreme Court agreed with the vice president that the Court of Appeals was incorrect to conclude that it had no authority to exercise jurisdiction over the vice president’s appeal. But while the decision is framed in the technical, legalistic language of appellate jurisdiction, it speaks to an extraordinarily broad concept of executive authority and judicial deference thereto. The court began its discussion by noting that this was not a run-of-the-mill dispute over documents in a lawsuit, because it involved demands for information from the vice president and other high-ranking members of the executive branch. That makes a difference, the justices reasoned, because–as the Supreme Court has recognized since the days of the Founders–”In no case…would a court be required to proceed against the president as against an ordinary individual.” The public interest requires that the courts give “recognition to the paramount necessity of protecting the Executive Branch from vexatious litigation that might distract it from the energetic performance of its constitutional duties.”

These constitutional concerns are particularly strong in the civil-litigation context, the Court said. In a series of cases involving demands for information from President Nixon regarding the Watergate break-in, the Court had argued that the president’s constitutional right to confidentiality in his deliberations with his advisers may have to give way to the search for the truth in a criminal case. But this is a civil case arising under non-criminal federal statutes. The Court reasoned that the “right to production of relevant evidence in civil proceedings does not have the same ‘constitutional dimensions.’” Thus, withholding the information sought “in this case…does not hamper another branch’s ability to perform its essential function in quite the same way” as doing so in a criminal subpoena context.

At the same time, the Court recognized that requiring the vice president to search for and turn over scores of documents to comply with demands in a civil case imposed a substantial burden on the presidency: “This is not a routine discovery dispute,” but rather one which seeks discovery from the “highest level” of the executive branch. In that context, the courts owe special deference to the president’s role as chief executive and should exercise caution in allowing private parties to force disclosure of wide-ranging information from the executive branch. Requiring the president to invoke executive privilege to protect itself, as the lower courts did here, actually increases, rather than relieves, the constitutional concerns raised in the case, since the Court properly regards executive privilege as an “extraordinary assertion of power ‘not to be lightly invoked.’”

Given the Supreme Court’s deferential approach to the government’s assertions that discovery would encroach on executive prerogatives–and the open skepticism of several justices during oral arguments about the case proceeding in any form–it would not have been surprising for the Court to have issued a decision that settled the case in its entirety in favor of the vice president. But despite seemingly putting all of the pieces of the puzzle together, the Court did not issue such a ruling. Rather, the Court sent the case back to the Court of Appeals to decide the merits of the vice president’s claims. In concluding, however, the Court hinted at how those questions should be resolved: “We note only that all courts should be mindful of the burdens imposed on the Executive Branch in any further proceedings.” Two justices, however, suggested that the case should have been dismissed in its entirety, and a third justice all but suggested the lower court should end the case quickly.

While the decision of the Supreme Court leaves work to be done in and by the lower courts before the NEPDG litigation goes away entirely, it is a major victory for the executive branch and the vice president in particular. The ground given away by the Clinton administration in its frivolous assertion of executive privilege in the Paula Jones case has begun to be recovered by Bush and Cheney in their fight for the executive’s right to deliberate in confidence. The Supreme Court’s decision is an appropriate recognition that civil discovery against a sitting president or vice president has the potential for the wholesale distraction from the executive’s constitutionally assigned duties, and thus raises serious separation-of-powers concerns. It is an affirmation of the vice president’s resolute assertion that he and the president should have the right to receive in confidence the advice necessary to the performance of their duties. It is a decision that will be cited by many a president to come–Democrat and Republican.

Shannen W. Coffin, a partner at Steptoe & Johnson LLP in Washington, D.C., is a former deputy assistant attorney general for the civil division of the Department of Justice. In that capacity, he argued (repeatedly) the case that became Cheney v. U.S. District Court.