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January 16, 2003
CONTACT: David Fish
(202) 289-8928

Bates Ignores the Bait,
Avoids Legislative-Exec. Fight

May Says Judge Wisely Decided Cheney Case on Narrow Grounds

WASHINGTON, D.C. - U.S. District Judge John Bates is to be commended for his wise and principled handling of the landmark Cheney case, writes Progress & Freedom Foundation Senior Fellow and Director of Communications Policy Studies Randolph J. May in “The Reluctant Referee,” his most recent Legal Times column. According to May, Bates’ dismissal of the case on grounds that the GAO, which brought the suit, lacks standing to sue the vice president preserved important presidential prerogatives.

“The practical effect [of Bates’ December 9 ruling] was to preserve the president’s constitutional prerogative to solicit advice freely from whomever he wants as he formulates legislative recommendations,” May writes. “By avoiding a broader ruling, Judge Bates wisely left unresolved difficult separation of power 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.

What would have been the result of a broader ruling? May argues that nothing less than Congress’ ability to compel the release of information from executive branch agencies – potentially an important oversight tool and check on executive branch power – was at stake. The GAO “risked a ruling that Congress cannot authorize the GAO to sue even an agency head for information concerning the agency’s statutorily defined duties,” he writes.

“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,” May continues. “Separation of powers works best in preventing over-concentration of authority in any branch which the precise boundaries of such authority remain somewhat unsettled and left to the pull and tug of politics.”

The Progress & Freedom Foundation is a market-oriented think tank that studies the impact of the digital revolution and its implications for public policy. The Foundation is a 501(c)(3) nonprofit organization founded in 1993.



The Progress & Freedom Foundation