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The Reluctant Referee

In GAO v. Cheney, the judge wisely didn’t mediate a legislative-executive fight

by Randolph J. May
Legal Times, January 6, 2003

Pay special attention to any case with a name like David Walker, Comptroller General of the United States v. Richard Cheney, Vice President of the United States. The style is a dead giveaway of a fierce fight between two co-equal branches of government refereed by the third—and a warning that the delicate balance built into our Constitution’s structure has been put at risk.

But on Dec. 9, U.S. District Judge John Bates disposed of the landmark Cheney case on narrow standing grounds. The practical effect was to preserve the president’s constitutional prerogative to solicit advice freely from whomever he wants as he formulates legislative recommendations. By avoiding a broader ruling, Judge Bates wisely left unresolved difficult separation-of-powers issues. I say “wisely” because, as the Founders well understood, the very murkiness of the boundaries separating the branches serves to impede a power grab by any one branch.

Advising George W. Bush

The comptroller general, who heads up the General Accounting Office, Congress’ investigative and auditing arm, sued Vice President Cheney to obtain information concerning the National Energy Policy Development Group. The energy task force was created by President George W. Bush to develop policy recommendations. Chaired by the vice president, it was composed entirely of officials from various federal agencies. In May 2001, it released a report, approved by the president, with 105 separate recommendations, mostly in the form of legislative proposals.

Shortly thereafter, at the behest of Reps. John Dingell (D-Mich.) and Henry Waxman (D-Calif.), the GAO requested a broad array of information about the task force’s activities, including an accounting of expenditures, a list of outsiders with whom task force members met, and the substance of the information presented at those meetings. The congressmen asserted this information was needed to determine if President Bush’s energy policies were unduly influenced by campaign supporters. After negotiation, some expenditure accounting was produced, and the GAO dropped its request for the substance of the information presented at meetings. So when the suit was filed in February 2002, it principally sought to discover with whom task force members met.

The vice president argued for the suit’s dismissal on separation-of-powers grounds. Specifically, he contended that the GAO lacks authority to file a suit that interferes with presidential powers under the Article II opinions and recommendations clauses. The opinions clause provides that the president “may require the Opinion in writing” of executive department heads, and the recommendations clause directs the president to recommend whatever legislation he deems expedient. The vice president maintained that the president established the energy task force to advise him so that he could submit such legislative proposals and that suits on behalf of Congress seeking to investigate how these exclusively presidential powers are exercised violate the separation of powers.

The District Court dismissed the suit on narrower grounds that did not resolve the Article II claims on the merits. Judge Bates ruled that the GAO lacked standing to bring the suit because it cannot point to a concrete injury as required under Article III, especially since not even a single congressional committee, much less either house of Congress, indicated any support for pursuing the task force information.

The Difference With Agencies

Because standing—like its close cousins justiciability, political question, and ripeness—is itself rooted in hazy separation-of-powers principles lacking bright-line boundaries, it is easy to over-read the reach of Judge Bates’ opinion. Take Stuart Taylor Jr.’s Dec. 16 column (“A Victory Gone Too Far,” Page 46). Taylor declares that the court held “that the head of the GAO has no legal standing to sue Vice President Dick Cheney or any other executive branch official for information.” (My emphasis.) With this interpretation in mind, he concludes, “the executive branch will have the trump card in every negotiation” over information sought by Congress. (Again, my emphasis.) Indeed, Taylor refers throughout to this suit’s impact on future suits against “the executive branch.”

But Taylor’s reading conflates the issue of Congress’ authority to obtain information from the plethora of executive agencies with the issue of Congress’ authority to obtain information from the vice president. The GAO’s suit was not brought against an agency created by Congress subject to certain statutorily defined powers, such as the Department of Energy. Rather, it was brought against the vice president, a constitutional officer.

Significantly, the statutory provision upon which the GAO primarily relied for authority provides that it may bring a suit “to require the head of an agency to produce a record.” 47 U.S.C. §716(b)(2). While the statute does not define “agency” in a way that explicitly excludes the president or vice president, in similar contexts the courts regularly have held that “agency” does not include the office of the president. For example, in Franklin v. Massachusetts (1992), although the Administrative Procedure Act does not explicitly exclude the president from the definition of “agency,” the Supreme Court held that he was not subject to the act “out of respect for separation of powers and [his] unique constitutional position.”

Thus, even as a congressional agent, the GAO lacks authority to bring the Cheney suit because no one suggests that the vice president is any more an agency head than the president. And as Franklin intimates, a statute authorizing the GAO to sue the president or vice president for information of the type sought in Cheney almost certainly would be unconstitutional.

But would a suit brought under Section 716(b)(2) against an official who clearly is head of an agency be unconstitutional? This is a more difficult question. The answer depends, in large part, upon whether courts accept the idea of a “unitary executive”—that is, the notion that, under our Constitution, the president ultimately has the power to control the actions of executive department heads notwithstanding statutory constraints. While there is no dispositive decision, the weight of scholarly opinion tends to reject this theory.

So it is quite possible that Judge Bates would rule that the GAO has standing, consistent with the Constitution, to compel executive department heads to produce information relevant to their statutory responsibilities—say, to require the secretary of energy to name the people with whom he consults in formulating a congressionally mandated rule. But because Bates’ dismissal was based on lack of standing to sue the vice president, we don’t know how he, or another judge, would rule in that situation.

Political Football

The Cheney case marks the first time the GAO has sued any executive branch entity for information. This is certainly not because the GAO has not frequently sought information from the executive branch. As Taylor points out, “the agency has not needed to sue in the past because the executive branch has generally provided the information.”

No doubt the energy task force became a jolly good political football, with Reps. Dingell and Waxman waxing indignant about the Bush administration’s relying too heavily on fat cat contributors for advice. The way in which the task force operated is fair game for sowing political hay. One may certainly suggest, as a matter of politics, that the vice president has something to hide because he won’t name those with whom the task force consulted. But it is entirely another thing for an agent of Congress—without so much as one committee’s blessing—to ask a court to order the vice president to produce such information. To preserve his Article II prerogative to obtain advice freely from whomever he wants, inside or outside the administration, in order to fulfill his constitutional duty to inform himself, deliberate, and recommend legislation, the president took a principled stand.

The GAO, on the other hand, risked too much in filing the lawsuit. It risked a ruling that Congress cannot authorize the GAO to sue even an agency head for information concerning the agency’s statutorily defined duties. Because Judge Bates’ decision was based on narrow standing grounds, it cannot be read to decide that question.

And that’s a good thing too. Like Stuart Taylor, I don’t want the executive branch to hold the trump card in every negotiation over congressional access to information held by the executive branch. Separation of powers works best in preventing over-concentration of authority in any branch when the precise boundaries of such authority remain somewhat unsettled and left to the pull and tug of politics.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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