Amicus Curiae Brief — Cheney v. United States Dist. Court for DC

Or eae

No. 03-475 OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

cs oP ca ea

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF

COLUMBIA, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

IN SUPPORT OF RESPONDENTS

SIERRA CLUB AND JUDICIAL WATCH, INC.

DAVID OVERLOCK STEWART

Counsel of Record

MARCH 11, 2004 . (202) 508-4600

(Names of Amici and additional Amici Counsel listed on inside cover)

Names of Amici and Additional Amici Counsel

American Association of Law Libraries

American Library Association

Miriam M. Nisbet

Legislative Counsel

1301 Pennsylvania Avenue N.W. - #403

Washington D.C. 20004-1701

Association of Research Libraries

The Center for American Progress

Mark David Agrast

Senior Vice President for Domestic Policy

805 Fifteenth Street N.W.

Suite 400

Washington D.C. 20005

Common Cause

National Security Archive

Meredith Fuchs, General Counsel

George Washington University

Gelman Library Suite 70i —-

2130 H Street N.W.

Washington, DC. 20037

OMB Watch

People for the American Way Foundation

Elliot M. Mincberg

2000 M Street N.W.

Suite 400

Washington D.C. 20036

Society of American Archivists

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .................0...00000000004. |

SUMMARY OF THE ARGUMENT............................. 3

et 5

1. The Open Government Values of FACA Support

Our Constitutional Democracy ...................cc000000 5

A. The Constitutional Structure is Based on

TTT cnternieneniennnesesnananessenneccccsees 5

B. FACA Aims To Secure Public Confidence

in the Integrity of Governmental Processes ....8

1. FACA Aims To Prevent Private

Groups From Exerting Secret Influence

BD FED POUIIIIIB nnccccccrcccescccsscccssesesscseees 9

tw

FACA Provides the Public Accurate

Information Concerning Executive

EEE A 1]

3. FACA Does Not Impede Advisory

Ee 13

Il. The Court Should Decline the Government's

Invitation To Address The Separation of

EE 15

A. This Court Has Never Recognized the

Immunity from Judicial Process That

rT 16

B. Discovery Can Accommodate Separation

Of Powers CONCERNS .............ccccseeesseeeeseeeneeees 19

Ill. Application of FACA to the NEPDG Would

Not Disrupt the Separation of Powers ................. 20

A. The Separation of Powers Is Based on

Checks and Balances, Not Executive

PUREE .xccccccecccccssceccsssnsssescnsssnsessscsssssosscsossess 21

B. The Constitutional Text Does Not

Support Petitioners’ Asserted Executive

PHOTOGRIVES............000.0cccsrersersssscrecsseseseseesseoes 22

~~ 27

TABLE OF AUTHORITIES

CASES Page

American Foreign Serv. Assoc. v. Garfinkel,

Ce isieeensinntnniinrtnaiesinsiinntintnmeansteninimusiainnes 15

Association of Am. Phys. & Surgeons, Inc. v. Clinton,

CE 18

Association of Am. Phys. & Surgeons, Inc. v. Clinton,

og Kh ee 23, 24

In re Cheney,

Fe ee Ce ie Gl Se ccencnemereeemintnattennnn 15

Clinton v. Jones,

a ID Ce crenicesiersninvecanininetnemiebintenennneenanines 16, 21

Clinton v. New York,

a MON Ue ireteiieriniatnnesntetntrenaiennatinntentapeptonainmesiiaas 22

Grosjean v. American Press Co.,

Be a GEE inrrennticistiniisiiescnermasitniennteitnmieneaseal 8

In re Herring,

es es Een inichisldnninstniaetainichinenestcerineeniediniipnitinmaiauaen 18

Judicial Watch, Inc. v. NEPDG,

233 F. Supp. 2d 16 (D.D.C. 2002).............ccc0ccceeeeeees 15, 16

Loving v. Uniied States,

er Cs See rertenmieninninintennanentaneniinanidaiinniainites 21, 22

Mistretta v. United States,

es See ee asteesensieniciiitniernentnnearannieiivinitinema 21

inl

Morrison v. Olson,

GF Te, Ge Ce cecentersnsensetnguiesememnmmnnnenn 19, 21

Myers v. United States,

UE 6

National Anti-Hunger Coalition v. President's

Private Sector Survey on Cost Control,

i “‘( RN , 11

Natural Res. Def. Council v. Pena,

TAA boot ele 4) 19

New York Times v. Sullivan,

(OS 8, 22

Nixon v. Administrator of Gen. Servs.,

ee 16, 25

Nixon v. United States,

eee 5

Public Citizen v. DOJ,

yy 19, 25

Rosenbloom v. Metromedia, Inc.,

FO 8

Thornhill v. Alabama,

CO OEE 8

United States v. Armstrong,

SS 17,18

United States v. Reynolds,

OU 16, 18

IV

EE

Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973), cert.

I ee es OE eC cteeeninenicninn 19

Youngstown Sheet & Tube Co. v. Sawyer,

ek re htnninnccnndecnmemeniinbediiarmmmnneienene 24

CONSTITUTIONAL PROVISIONS AND STATUTES

Se Geen ITE Gils Ut Diccsinssicrnentnnsnnvensrerianntennnnineemmenssonienin 24

eee eee: UIs Sites Ub Ai aiinicisnineninistnnarinsienidaitncpeniematnsainntnenieinets 23

Pee GRID, Big Te Sa crenncnssestecesnccncnnmscssmnenmmeanscsnenes 9

ee GI Big Gi Be reererveemnienssenemeemneeen 14

Pe GR, iy Ge Wi Ricrasensenesennenmsseniememmnatenieneen 9,14

66 Fed. Reg. 27495 (May 17, 2001) .0........cccccceesesceeeereeeees 14

BF Fite DOPED Oo Ge tercsncnnmneneresnstessicsseneecenmennents 14

Ga ls SE: OU SD cerentcnncemnenenserenssnescntsensenenenn 14

Executive Order No. 12,546,

51 Fed. Reg. 4475 (Feb. 3, 1986) .......cccececeeeeeeees 14

H.R. Rep. No. 92-1017 (1972), reprinted in 1972

eae: SUT cersinteninarinncinnncnianinieneiditunertusidinianin 9,10

a ee eek Se EON ccicnsennicincnesenssnetisetonisencentsieansnemnns 10

LAW REVIEWS AND JOURNALS

Vincent Blasi, The Checking Value in First

Amendment Theory, 1977 AM. BAR FOUND. RES.

Michael H. Cardozo, The Federal Advisory

Committee Act in Operation, 33 ADMIN. L. REV.

D GOI G Pencescesonensesessoscsssessssssnaseenseatasnmensesssemsensssssessssesenees 9

Stephen P. Croley & William F. Funk, The Federal

Advisory Committee Act and Good Government, |4

VARS, GUS, Ge CPP cercecesecnscnsersscensssctensessnssnsenses )

Martin S. Flaherty, The Most Dangerous Branch,

01GB Vaa LF. UTES COPIED ccccccscscsssscccssvsessscscsccsssscessesee 11

Lawrence Lessig & Cass R. Sunstein, The President

and the Administration,

tl. 7 RR OR 0 See 18

Wallace Parks, The Open Government Principle: Applying

the Right to Know Under the Constitution, 26 GEO.

WAG. 6. BBY. 0 COBB FP ccccccesccescsscscscsssscssesesscssncevessssseces 6

J. Gregory Sidak, The Recommendations Clause,

uk YS OF ee 23

ADDITIONAL AUTHORITIES

Advisory Committees: Hearings Before the Subcomm. on

Intergovernmental Relations of the Comm. on

Government Operations on S. 1637, S. 1964, and S. 2064,

92nd Cong., Ist Sess. (1971) ......cccccceeeeeeeees hasineiietindeanananial )

4 ANNALS OF CONGRESS (1794)........cccccccccccceecsesseeeeeseesseeeeesees 8

10 ANNALS OF CONGRESS (1798) .........cc:cssseesserssecceeeeeeseeeseeeees 6

BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF

THE AMERICAN REVOLUTION (1967).......cccc0cesceseeceeeeeees 6,7

CATO’S LETTERS: ESSAYS ON LIBERTY, CIVIL AND RELIGIOUS

CTeamatnand O68... 19771 )...cccccccccoscescccsscsscvsssssesessscsssnossessscesees 7

ee ET ee Om -

3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION (J. Elliot ed.,

UR epee aya eon ne eT Ne. 5

THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776)....6

Department of Energy, National Petroleum Council Meeting

eS SITE icerinterinnierinstimarsnnenisnenuniannianidad 13

Department of Energy, Secretary of Energy Advisory \

Board, A Report Card on the Department of Energy’s

Nonproliferation Programs with

SI 14

Federal Advisory Comm. Act Amendments of 1989: Hearing

on S.444, 101st Cong., Ist Sess. (1989)... 12, 15

FEDERAL ADVISORY COMMITTEE ACT: SOURCE BOOK:

LEGISLATIVE HISTORY, TEXTS, AND OTHER DOCUMENTS

Sr ainiicssiceitinnnieiipaninuntiaiadiainaaemsnisasiinnetenananiaaiiaiimameatiaal 9, 10

THE FEDERALIST No. 10 (Madisom).........0000cccccccccssecceeceeeeeees 22

THE FEDERALIST No. 51 (Madison) .........00.cccccccccccccceeeeeeeeees 22

THE FEDERALIST No. 70 (Hamilton) ............cccccccccccceeesceeeeeee 24

THE FEDERALIST No. 74 (Hamilton)...............ccccccccccceeeeeeeeees 24

THE FEDERALIST No. 84 (Hamilton) ..............ccccccccccceeeeeeeeees 12

GAO Report, Mad Cow Disease, Improvements in the

Animal Feed Ban and Other Regulatory Areas Would

Strengthen U.S. Prevention Efforts (January 2002)........ 13

Hearings on the FACA and the President's AIDS Comm'n

before the Senate Comm. on Global Affairs, \00th Cong.,

EEE CR ee ere ea eRe, &

6 THE WRITINGS OF JAMES MADISON (G. Hunt ed., G.P.

en 7

9 THE WRITINGS OF JAMES MADISON (G. Hunt ed., G.P.

Pee SG FID ceccccecccsnsnssecesssssenessnncensencnecessunnssesssess l

ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION

TO SELF GOVERNMENT ( 1948)........ccccccssssssesssssssssessesseesenes 6

National Petroleum Council, Securing Oil and

Natural Gas Infrastructures in the New Economy

Cee FI vecececcnceccerseseessenscsssnessesssasenssesnesansansnesesszessnsces 14

CLINTON ROSSITER, SEEDTIME OF THE REPUBLIC (1953)........ 7

Senate Hearings Before the Subcomm. on

Intergovernmental Relations of the Comm. on

Government Operations on S. 3067, 91st Cong.,

Bn Base. COP Ta cecevcncrsceevnsnscscsccsnsersenessnssesesssessunnssssesseces 12

INTERNET SOURCES

Clean Air Task Force, Scraping the “Bottom of the Barrel”

for Power: A Rebuttal to the National Coal Council’s

Electricity Availability Report (November 2001),

available at http://www.catf.us/publications/

reports/bottom_of_the_barrel.php ..............:sssseseseeren 13

Defenders of Wildlife, What the National Petroleum Council

Won’t Tell You About a Natural Gas “Crisis” (Sept. 25,

2003), available at http://www.defenders.org/

releases/pr2003/pr092503a/htiml ..............ceceeeeeeeeeeeeeeenes 13

Department of Energy, Environmental Management

Advisory Board, Public Meeting Minutes (Nov. 21-22,

2002), available at http://web.em.doe.gov/emab/Nov2002

en 13

Environmental Management Advisory Board, Public Meeting

Minutes (Nov. 20-21, 2002), available at

http://web.em.doe.gov/emab/Nov2002min.html ............ 13

National Bioethics Advisory Commission 1998-1999

Biennial Report, available at

http://www. fda.lgov/bbs/topics/NEWS/NEW00517.html 12

The National Coal Council, Increasing Electricity

Availability from Coal-Fired Generation in the Near-

Term (May 2001),

available at http://www.nationalcoalcouncil.

org/Documents/May2001 report-revised.pdf .................. 13

National Petroleum Council, Balancing Natural Gas Policy:

Fueling the Demands of a Growing Economy (Sept. 25,

2003), available at http://www.npc.0rg) ..........ccc0000000e. 13

Report of the Presidential Commission on the Space Shuttle

Challenger Accident, available at

http://history.nasa.gov/rogersrep/5 | lcover.htm. ............. 14

Testimony on “Agent Orange: Status of the Air Force

Ranch Hand Study” by Ronald Coene (Mar. 15, 2000),

available at

http://www.hhs.gov/as//testify/t0003 | Sa.html................ 12

WWW. fido.gov/facadatabase..................ccsscecsssscsssssesescescesseers 13

~~

BRIEF OF AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

Four national library associations, along with five

public interest groups and one national archival association,

respectfully submit this brief amici curiae in support of

respondents Sierra Club and Judicial Watch, Inc. Pursuant to

Supreme Court Rule 37.2(a), counsel for the parties have

consented to the filing of this amicus brief.' Letters of

consent to the filing of this brief have been filed with the

Clerk of the Court.

INTEREST OF AMICI CURIAE

All ten amici curiae represented in this brief have a

significant interest in open government laws, including the

Federal Advisory Committee Act (“FACA”). Amici share

the conviction that broad access to government records

protects values essential to representative democracy. Amici

employ and rely on open government laws, including FACA,

to facilitate full democratic participation. Public

participation in government can be meaningful only if the

people know what officials are doing and how they are doing

it. Equally, without that information the people cannot hold

public officials accountable. Amici urge that this Court

reject the petitioners’ claim that they may conduct the

public’s business in secret, and embrace the principle

ar ulated by James Madison two centuries ago \(9 THE

WRITINGS OF JAMES MADISON 103 (G. Hunt ed., GP.

Putnam’s Sons 1910)):

Pursuant to Rule 37.6, the amici state that no counsel for

any party authored this brief in whole or in part, and no person or

entity other than the amici curiae made a monetary contribution to

the preparation or submission of this brief.

l

A popular government, without popular

information, or the means of acquiring it, is

but a Prologue to a Farce or a Tragedy; or

perhaps both. .... And a people who mean

to be their own Governors must arm

themselves with the power which knowledge

gives.

The American Association of Law Libraries is a

nonprofit educational organization with over 5000 members

nationwide whose mission is to promote and enhance the

value of law libraries, to foster law librarianship, and to

provide leadership and advocacy in the field of legal

information and information policy.

The American Library Association is the oldest and

largest library association in the world, with some 65,000

members and a mission to provide leadership in the

development, promotion and improvement of library and

information services in order to enhance learning and ensure

access to information for all.

The Association of Research Libraries, a nonprofit

organization of 123 research institutions, is dedicated to

promoting equitable access to and effective use of recorded

knowledge in support of teaching, research, scholarship and

community service.

The Center for American Progress is a nonpartisan

research and educational institute dedicated to promoting a

strong, just and free America that ensures opportunity for all

people.

Common Cause is a nonpartisan citizen activist

group, with more than 250,000 members and 37 state

chapters, which advocates for honest, open and accountable

government, as well as citizen participation in government.

= gene Kore aes

The National Security Archive is a nongovernmental

research institute and library that collects and publishes

declassified documents, obtained through the Freedom of

Information Act and other open government laws,

concerning United States foreign policy and national security

matters.

OMB Watch is a nonprofit research and advocacy

organization dedicated to promoting government

accountability and citizen participation in policy decisions.

People for the American Way Foundation is a

nonpartisan citizens’ organization established to promote and

protect civil and constitutional rights, including the right of

all citizens to an open government that avoids excessive and

improper secrecy.

The Society of American Archivists provides

services to and represents the professional interests of 3700

individual archivists and institutions as they work to identify,

preserve and ensure access to the nation's historic record.

The Special Libraries Association is a nonprofit

organization for information professionals and their strategic

partners, and serves more than 12,000 members in the

information profession, including corporate, academic and

government information specialists.

SUMMARY OF THE ARGUMENT

Petitioners strain to conjure a constitutional collision

among the branches of government from an unremarkable

discovery dispute over records of the 2001 proceedings of

the National Energy Policy Development Group

(“NEPDG”). In so doing, they demand a broad executive

prerogative to defy both the Federal Advisory Committee

Act and judicial orders that require disclosure of formalized

private participation in domestic policy making. Because the

Vice President has refused to participate in discovery even to

3

assert executive privilege, this unprecedented assertion of

executive prerogative arises virtually in the abstract, with

neither an adequate factual record nor any meaningful

consideration by the courts below of petitioners’ insistence

that the public has no right to know how its business is

conducted.

This Court should not abandon for this case its

ordinary standards for deciding constitutional questions,

certainly not to serve petitioners’ goal of making government

less accountable. This brief examines three reasons why the

decision below should be affirmed.

First, the goals of FACA, its mechanisms, and its

underlying principles complement our constitutional plan of

a democratic government protected by checks and balances

among three coordinate branches. The Framers did not

intend for any single branch to emerge triumphant over the

others. Each branch is accountable to the others and to the

people in some significant fashion — an accountability that is

powerfully reinforced by the open government policies of

FACA.

Second, although we do not understand why

petitioners are so plainly spoiling for this constitutional

confrontation, the emaciated record in this case provides a

uniquely poor context in which to resolve large

constitutional issues. Ordinary judicial processes allow the

lower courts to supervise staged discovery that is sensitive to

assertions of executive privilege. Petitioners have not even

attempted to resolve through these ordinary judicial

processes the dispute over what should be limited discovery

into the threshold questions of whether and how FACA

applies to the NEPDG. Instead, they press in a headlong

rush for this Court to decide largely abstract constitutional

issues, based on an incomplete and one-sided record. This

Court should insist that petitioners engage the ordinary

processes for the resolution of discovery disputes.

4

CC —_— ——— LLL

Third, were this Court to reach the separation of

powers issue raised by petitioners, FACA should not be

found unconstitutional. Requiring the executive to respond

to judicial process works no material diminution of executive

power. Nor is the executive branch improperly hobbled by

having to disclose the identity of private citizens who serve

on advisory committees and thus become part of the

government’s formal making of public policy. Such

disclosures and accountability are not inconsistent with the

very modest powers conferred by the Opinions and

Recommendations Clauses of Article II, and disturb no

essential executive functions.

ARGUMENT

I. The Open Government Values of FACA Support

Our Constitutional Democracy.

Petitioners ignore the democratic values embodied in

the Constitution when they disdain ordinary judicial process,

asserting that “respondents [do not] have any meaningful

need for the information that they seek.” Br. for Petitioners

at 46. Public accountability — not executive prerogative — is

the genius of our constitutional system. See Nixon v. United

States, 418 U.S. 683, 706 (1974). The Framers intended that

government should operate in secret only “when it would be

fatal and pernicious to publish the schemes of government.”

3 DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE

ADOPTION OF THE FEDERAL CONSTITUTION 233 (J. Marshall)

(J. Elliot ed., 1901). FACA supports and strengthens that

core constitutional value of an open, accountable democracy.

A. The Constitutional Structure Is Based on

Open Government.

In eighteenth-century America, the view was widely

held that public participation in government could check the

behavior of political actors. See Vincent Blasi, The

5

Checking Value in First Amendment Theory, 1977 AM. BAR

FouNnD. Res. J. 521, 529; BERNARD BAILYN, THE

IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 167

(1967). The legislative need for access to public records was

known well to the signers of the Declaration of

Independence. In its specification of King George's

“repeated injuries and usurpations,” that document listed the

practice of convening legislatures “at places unusual,

uncomfortable, and distant from the depository of their

public records, for the sole purpose of fatiguing them into

compliance with his measures.” THE DECLARATION OF

INDEPENDENCE para. 2 (U.S. 1776).

The Constitution incorporates the idea _ that

representative democracy can succeed only if information

about government is broadly available. See Wallace Parks,

The Open Government Principle: Applying the Right to

Know Under the Constitution, 26 GEO. WASH. L. REV. 1, 6-

14 (1957); ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS

RELATION TO SELF-GOVERNMENT 13-16 (1948). The

Framers understood that secrecy is antithetical to

representative government: “In Governments like ours,

where all political power is derived from the people, and

whose foundations are laid in public opinion, it is essential

that the people be truly informed of the proceedings, the

motives, and views of their constituted authorities.” 10

ANNALS OF CONGRESS 930-31 (1798) (statement of Mr.

Rutledge).

The public’s right to know, inherent in any system of

self-governance, is reflected in the structure of the

Constitution. Refusing to grant absolute power to any office

or person, the Framers chose a system of balanced tension

among the branches of government (Myers v. United States,

272 U.S. 52, 293 (1926) (Brandeis, J., dissenting)):

The doctrine of the separation of powers was

adopted by the convention of 1787, not to

6

promote efficiency but to preclude the

exercise of arbitrary power. The purpose was,

not to avoid friction, but, by means of the

inevitable friction incident to the distribution

of governmental powers among __ three

departments, to save the people from

autocracy.

The First Amendment also is designed to check

governmental power. Among the most influential political

sources in the colonial period were the pseudonymous essays

of Cato. See CLINTON ROSSITER, SEEDTIME OF THE

REPUBLIC 141 (1953); BAILYN, supra p. 6, at 36. Cato’s

celebrated letter “Of Freedom of Speech” stressed how

important transparency in public affairs is for representative

government:

And as it is the Part and Business of the

People, for whose Sake alone all publick

Matters are, or ought to be, transacted, to see

whether they be well or ill transacted; so it is

the Interest, and ought to be the Ambition, of

all honest Magistrates, to have their Deeds

openly examined, and publickly scanned.

Cato’s Letters No. 15, Of Freedom of Speech: That the

same is inseparable from Public Liberty (Feb. 4, 1720),

reprinted in CATO’S LETTERS: ESSAYS ON LIBERTY, CIVIL

AND RELIGIOUS 97 (Trenchard ed., 1971).

Madison, draftsman of the First Amendment, stressed

that public access to government information safeguards

popular sovereignty: “[T]he right of freely examining public

characters and measures, and of free communication thereon,

is the only effective guardian of every other right.” 6 THE

WRITINGS OF JAMES MADISON 398 (G. Hunt ed., G.P.

Putnam’s Sons 1906). Writing for the Virginia General

Assembly, Madison condemned the Alien and Sedition Acts

;

of 1798 as “a power which, more than any other, ought to

produce universal alarm, because it is levelled against the

right of freely examining public characters and measures,

and of free communication among the people thereon, which

has ever been justly deemed the only effectual guardian of

every other right.” /d. at 359; see also New York Times v.

Sullivan, 376 U.S. 254, 274-76 (1964) (public hostility to

Alien and Sedition Acts).

This Court has long acknowledged that access to

information is necessary to our democracy. See Rosenbloom

v. Metromedia, Inc., 403 U.S. 29, 41-43 (1971) (discussing

relationship between access to information and self-

governance); Thornhill v. Alabama, 310 U.S. 88, 95, 102

(1940) (same). As cautioned in Grosjean v. American Press

Co., 297 U.S. 233, 247 (1936), “‘The liberty of opinion

keeps governments themselves in due subjection to their

duties.’” (quoting Erskine’s Speeches, High’s Ed., Vol. I at

525). Madison, again, captured the essence of the

experiment in democracy in which he played so great a role

(4 ANNALS OF CONGRESS 934 (1794)):

If we advert to the nature of Republican

Government, we shall find that the censorial

power is in the people over the Government,

and not in the Government over the people.

B. FACA Aims To Secure Public Confidence

in the Integrity of Governmental Processes.

FACA fortifies the constitutional commitment to

open government, serving as “one of the four pillars of open-

government laws.” Hearings on the FACA and the

President's AIDS Comm'n before the Senate Comm. on

Global Affairs, 100th Cong., 1st Sess. 67 (1987) (statement

of Sen. Glenn) (referring also to the Freedom of Information

Act, the Administrative Procedure Act, and the Sunshine

Act). Congress intended that FACA would, with certain

specified exceptions, keep the public informed of advisory

committee activities by requiring committees to give

advance notice of meetings, hold al] meetings in public, keep

detailed minutes, and make their records available to the

public. 5S USC. App. 2, §§ 2(b), 10(a)-(c). The

requirements of FACA thus directly reinforce the

representative democracy embraced by the Framers.

1. FACA Aims To Prevent Private

Groups From Exerting Secret

Influence on Public Programs.

Beginning in the 1940s and 1950s, the Department of

Justice implemented guidelines, and Congress considered

legislation, addressing advisory committees that often were

convened by federal agencies. See Michael H. Cardozo, The

Federal Advisory Committee Act in Operation, 33 ADMIN. L.

REV. 1, 2 (1981); FEDERAL ADVISORY COMMITTEE ACT:

SOURCE BOOK: LEGISLATIVE HISTORY, TEXTS, AND OTHER

DOCUMENTS 46-48 (1978) [hereinafter FACA Source Book].

An apprehension grew that industry participation on certain

advisory committees was fostering private dominance over

public business. This apprehension — focused on the

Advisory Council on Federal Reports, the National Industrial

Pollution Control Council, and the National Petroleum

Council — spurred enactment of FACA.’ Before FACA,

critics charged that private interests were secretly capturing

public policy by controlling the flow of advice and

ee

. See Advisory Committees: Hearings Before the Subcomm.

on Intergovernmental Relations of the Comm. on Government

Operations on S. 1637, S. 1964, and S. 2064, 92nd Cong., |st

Sess. 345-402, 555-79 (1971) [“Sen. Hearings”); H.R. Rep. No.

92-1017, at 4 (1972), reprinted in 1972 U.S.C.C.A.N. 3491, 3496;

Stephen P. Croley & William F. Funk, The Federal Advisory

Committee Act and Good Government, 14 YALE J. ON REG. 451,

462-64 (1997).

9

knowledge to policymakers. See, e.g., Sen. Hearings at 346-

47, 350-52, 372, 411-12, 495.

Opening the hearings that led to the passage of

FACA, Senator Metcalf stated (FACA Source Book 154):

What we are dealing with, in these hearings,

goes to the bedrock of Government decision

making. Information is an important

commodity in this capital. Those who get

information to policymakers, or get

information from them, can benefit their

cause, whatever it may be. Outsiders can be

adversely and unknowingly affected. And

decision-makers who get information from

special interest groups who are not subject to

rebuttal because opposing interests do not

know about meetings — and could not get in

the door if they did — may not make tempered

judgments. We are looking at two

fundamentals, disclosure and counsel, the

rights of people to find out what is going on

and, if they want, to do something about it.

Before approving FACA, Congress made extensive

findings about the advisory committee process.

Congressional testimony disclosed that many advisory

committees “operate[d] in a closed environment,” affording

the public little or no opportunity to learn about their

deliberations or recommendations. S. Rep. No. 92-1098, at 6

(1972), reprinted in FACA Source Book 156. This “lack of

public scrutiny of the activities of advisory committees ...

pose[d] the danger that subjective influences not in the

public interest could be exerted on the Federal decision-

— makers.” /d A 1972 House report found (1972

U.S.C.C.A.N. 3491, 3496):

10

[O]ne of the great dangers in this unregulated

use of advisory committees is that special

interest groups may use their membership on

such bodies to promote their private concerns.

Testimony . . . pointed out the danger of

allowing special interest groups to exercise

undue influence upon the Government

through the dominance of advisory

committees which deal with matters in which

they have vested interests.

With FACA, Congress pulled aside the veil of

secrecy, opening “to public scrutiny the manner in which

government agencies obtain advice from private

individuals.” National Anti-Hunger Coalition v. President's

Private Sector Survey on Cost Control, 711 F.2d 1071, 1072

(D.C. Cir. 1983). The statute improves the ability of citizens

and their representatives to participate in public discussions

concerning government policy and to hold officials

accountable for their decisions.

2. FACA Provides the Public Accurate

Information Concerning Executive

Actions.

The powers of the modern Executive Branch exceed

anything the Framers could have imagined. See generally

Martin S. Flaherty, The Most Dangerous Branch, 105 YALE

L.J. 1725 (1996). As the executive branch has grown, the

public increasingly has come to rely on the media and citizen

organizations to maintain vigilance over official misconduct.

Open government statutes such as FACA are indispensable

aids to historians, journalists, and watchdog and advocacy

groups that serve as the contemporary analogue to

Hamilton’s “citizens who inhabit the country at and near the

seat of government . . . [and who] stand ready to sound the

alarm when necessary, and to point out the actors in any

11

pernicious project.” THE FEDERALIST No. 84, at 516

(Hamilton) (Clinton Rossiter ed., 1961).

Prior to FACA, “the interested public often couidn’t

even find out about the activities of a committee supposedly

representing their views to the Federal Government.”

Federal Advisory Committee Act Amendments of 1989:

Hearing on S.444, 10\st Cong., Ist Sess. 6 (1989) (statement

of Sen. Heinz). The absence of specified repositories for

advisory committee materials meant that often their records

were “lost” to the public and to history. See Senate Hearings

Before the Subcomm. on Intergovernmental Relations of the

Comm. on Government Operations on S. 3067, 9\st Cong.,

2nd Sess. 32 (1970). As then-EPA Administrator William

Ruckleshaus observed in 1971, some advisory committees

adopted the attitude of reaching decisions from a “quiet spot”

beyond the public view, neglecting any obligation to justify

their decisions to other officials and to the public. See

Senate Hearings, supra p. 9 n.2, at 776.

FACA has proved an effective tool for securing

public access to advisory committee meetings and for

making their records readily accessible to the public and

researchers. Advisory committees convened under FACA

have grappled with a wide range of public issues, including

epidemiological surveys of Vietnam veterans exposed to

Agent Orange, the prevention of mad cow disease, ethical

issues in stem-cell research, and the safety of dietary

supplements.’ FACA ensures that the deliberations and

’ See Testimony on “Agent Orange: Status of the Air Force

Ranch Hand Study” by Ronald Coene (Mar. 15, 2000), available

at http://www.hhs.gov/asl/testify/t000315a.html; GAO Report,

Mad Cow Disease, Improvements in the Animal Feed Ban and

Other Regulatory Areas Would Strengthen U.S. Prevention Efforts

28 (January 2002); National Bioethics Advisory Commission

1998-1999 Biennial Report, at 1, available at

http://www. fda.lgov/bbs/topics/NEWS/NEW005 1 7.html.

12

conclusions of those and other advisory committees are

subject to public scrutiny and inform public debate.* Public

meeting minutes provide information about agency priorities.

resource allocation, and practices. See, e.g, Environmental

Management Advisory Board, Public Meeting Minutes

(Nov. 20-21, 2002), available at http://web.em.doe.gov/

emab/Nov2002min.html (Department of — Energy

environmental cleanup policies and strategies).

3. FACA Does Not Impede Advisory

Committees.

. Compare The National Coal Council, Increasing

Electricity Availability from Coal-Fired Generation in the Near-

Term (May 2001), available at http://www.nationalcoalcouncil.

org/Documents/May200 | report-revised.pdf with Clean Air Task

Force, Scraping the “Bottom of the Barrel” for Power: A Rebuttal

to the National Coal Council’s Electricity Availability Report

(November 2001), available at http://www.catf.us/publications/

reports/bottom_of_the_barrel.php; compare National Petroleum

Council, Balancing Natural Gas Policy: Fueling the Demands of a

Growing Economy (Sept. 25, 2003), available aa

http://www.npc.org/ with Defenders of Wildlife, What the

National Petroleum Council Won’t tell You About a Natural Gas

“Crisis” (Sept. 25, 2003), available at http://www.defenders.org/

releases/pr2003/pr092503a/html; see also Department of Energy,

National Petroleum Council Meeting Transcript 60-61 (June 6,

2001) (describing public interest in Natural Gas Policy report; on

file with counsel for amici); Department of Energy, Environmental

Management Advisory Board, Public Meeting Minutes (Nov. 21-

22, 2002), available at http://web.em.doe.gov/emab/Nov2002

min.html.

. Advisory committee information, including charters and

member lists, is available online at www.fido.gov/facadatabase

(last visited Mar. 10, 2004).

13

The rules established by FACA are straightforward.

With exceptions not applicable here, an “advisory

committee” “established or utilized by the President” (i)

must provide timely notice of its meetings, which (11) must

be open to the public, with (iii) all transcripts and records of

its actions preserved. 5 U.S.C. App. 2, §§ 3(2).

10(a)( 1 )&(2); 10(b).

Advisory committees convened to analyze energy

issues regularly comply with FACA. See, e.g., Advisory

Committee on Reactor Safeguards, 68 FR 59644 (Nuclear

Reg. Comm'n Oct. 16, 2003); Environmental Management

Advisory Board Meeting 67 FR 5799 (Dep’t of Energy Feb.

7, 2002) (Alternative Technologies to _ Incineration

Committee); National Petroleum Council, Securing Oil and

Natural Gas Infrastructures in the New Economy | (June

2001) (report of FACA-governed committee originally

chaired by petitioner Cheney while still in private industry);

National Petroleum Council, 66 Fed. Reg. 27495 (May 17,

2001) (notice of public meeting to consider proposed final

national energy infrastructure report). Moreover, FACA has

applied to numerous high-profile commissions — without any

recorded injury to the executive branch — such as studies of

nuclear nonproliferation programs with Russia,° and the

Challenger space shuttle explosion.’

~

6

Department of Energy, Secretary of Energy Advisory

Board, A Report Card on the Department of Energy’s

Nonproliferation Programs with Russia (Jan. 10, 2001) (co-chaired

by Howard Baker and Lloyd Cutler).

See Exec. Order No. 12,546, 51 Fed. Reg. 4475 (Feb. 3,

1986); Report of the Presidential Commission on the Space

Shuttle Challenger Accident, available at http://history.nasa.gov/

rogersrep/5 | lcover.htm.

14

ee

ee ee ee an &

Leckie) RO

That the issues addressed by the NEPDG are of vital

public interest is no ground for excluding it from compliance

with FACA. Indeed, high public interest in the NEPDG

sharpens the need for public access to information about it.

By providing for public oversight of advisory committees.

FACA aims to prevent “uninformed speculation” about the

membership, cost, and recommendations of advisory

committees. See Federal Advisory Committee Act

Amendments of 1989: Hearing on S.444, 101st Cong., Ist

Sess. 6 (statement of Sen. Heinz). In most cases — though,

sadly, not in this one — such disclosures will eliminate the

need for litigation to learn about the actions of public

officials. See Br. for Petitioners at 15. In all of these

aspects, FACA serves the constitutional democracy that the

Framers built on three coordinate branches of government.

All of these considerations counsel strongly against

petitioners’ attempt to circumvent the law by raising

separation of powers issues, and counsel in favor of

returning the case to the district court for the threshold

determination whether the NEPDG is covered by FACA.

Il. The Court Should Decline the Government’s

Invitation To Address The Separation of Powers

Issue.

Although petitioners devote most of their brief to the

separation of powers, that constitutional question is poorly

presented on a record that is sharply limited by the Vice

President’s refusal to engage in ordinary discovery

processes. The Court should follow here its usual policy of

not “pronounc[ing] upon the relative constitutional authority

of Congress and the Executive Branch unless it finds it

imperative to do so.” American Foreign Serv. Ass'n v.

Garfinkel, 490 U.S. 153, 161 (1989).

Discovery is needed because the scanty record,

including the affidavit of Karen Knutson offered by

petitioners, does not “resolve the question of whether and

15

how FACA is applicable to NEPDG.” Judicial Watch Inc.

v. NEPDG, 233 F. Supp. 2d 16, 30 (D.D.C. 2v02).

Discovery might be quite limited. See Jn re Cheney, 334

F.3d 1096, 1105-07 (D.C. Cir. 2003). Plaintiffs’ allegations

might be answered by a document production (subject to a

suitable protective order) consisting only of attendance-

related records for the NEPDG meetings. Any supposedly

privileged records could be reviewed first in camera.

Petitioners’ refvsal to participate in the judicial process

necessarily precipitated a collision with the other two

branches, but the actual confrontation is too contrived and

too poorly grounded for this Court to decide it responsibly.

A. This Court Has Never Recognized the

Immunity from Judicial Process That

Petitioners Seek.

As the trial court recognized, the government’s

position is that it may skip ordinary judicial process through

the ipse dixit of its officials: “What you’re telling me is that

there are no factual disputes of any kind here because we say

there’s no factual dispute... . . That’s an incredible

statement.” Judicial Watch, Inc. v. NEPDG, No. CA 01-

1530 (EGS), Hr. Trans. at 22 (Feb. 13, 2002). The

government’s position ignores this Court’s rulings on the

amenability of Executive officials to judicial process. “[T]he

regulation and mandatory disclosure of documents in the

possession of the Executive Branch . . . has never been

considered invalid as an invasion of [executive] autonomy.”

Nixon v. Administrator of Gen. Servs., 433 U.S. 425, 443

(1977).

Even the President cannot avoid judicial process by

invoking an undifferentiated claim of burden on executive

operations. See Clinton v. Jones, 520 U.S. 681 (1997).

Officials inferior to the President certainly enjoy no greater

rights to evade judicial process. United States v. Reynolds,

345 U.S. 1, 9-10 (1953) (“Judicial control over the evidence

16

A at wow

in a case cannot be abdicated to the caprice of executive

officers ....”).

By disdaining judicial processes, petitioners have

ensured that the only materials in the impoverished “record”

are either untested affidavits crafted by executive officials

and their counsel, or documents from non-White House

offices that have been heavily redacted by executive officials

and counsel. It is no surprise that petitioners argue that such

a one-sided record supports their position. All litigants

would covet the right asserted by petitioners to control

everything the courts may know about the facts of a case.

Petitioners attempt to justify this idiosyncratic

version of the adversary process by claiming they are entitled

to a presumption of regularity in their.actions. They seek to

employ that presumption to prevent any judicial inquiry into

the performance of executive functions. Br. for Petitioners at

28. The case principally cited for this supposed presumption

provides little support for it. United States v. Armstrong, 517

U.S. 456, 465 (1996), stated two reasons for courts to defer

to prosecutorial discretion in bringing a criminal action.

First, the Court observed that such deference flowed from

the “relative competence of prosecutors and courts” in

evaluating the “strength of the case, the prosecution’s

general deterrence value, the Government’s enforcement

priorities, and the case’s relationship to the Government’s

overall enforcement plan.” /d. at 465. Second, the Court

expressed concern that judicial intrusion into prosecutorial

decision-making could “chill law enforcement.” /d.

For federal advisory comunittees, in contrast, there is

no question of relative competencies of the Congress and the

President. After decades of oversight, Congress directed in

FACA that in specified circumstances, advisory committees

should -meet public-access and reporting requirements.

Congress was entirely competent to do so. Moreover,

nothing in FACA should “chill” the exercise of executive

17

functions. The President remains free to obtain confidential

advice from executive branch officials, or from private

individuals. FACA applies only if he or other executive

officials choose to establish a formal policy-advising body

with private participants. This imposes no material burden

on Article II powers. See pp. 22-26. infra.

As the Framers surely would have, this Court should

take a skeptical view of any presumption that an executive

officer will never seek to circumvent judicial process

through artful affidavits. See Br. for Petitioners at 28-29. In

Reynolds, 345 U.S. at 4-6, this Court relied on affidavits

filed by Air Force officials that disclosure of certain

documents would compromise national security. As

described in a Motion for Leave to file a Petition for Writ of

Error Coram Nobis filed fifty years later, the now-

declassified documents reveal that the affidavits were false,

and the documents nowhere referred to national security

matters.” Without suggesting that the factual statements

made by government officials in this case are accurate or not,

Reynolds underscores the profound importance of adversarial

testing of government claims that information may be

withheld from disclosure. See also Association of Am. Phys.

, In any event, the government may well be wrong in

equating prosecutorial discretion in Armstrong with core executive

branch activities. Prosecution was not a “core” executive function

within the original meaning of the Constitution. See Lawrence

Lessig & Cass R. Sunstein, The President and the Administration,

94 COLUM. L. REV. 1, 14-22 (1994) (prosecutors were not

necessarily answerable to President until at least 1861;

prosecutorial authority was not within the exclusive domain of the

executive branch during early period of republic).

' See Herring v. United States, Civ. No. 2:03-05500-LDD

(E.D. Pa. Oct. 1, 2003) (Complaint {| 23-30); Jn re Herring, 123

S. Ct. 2633 (2003) (denying motion).

18

& Surgeons, Inc. v. Clinton, 989 F. Supp. 8, 9-12 (D.D.C.

1997) (finding that White House official's affidavit was

misleading).

B. Discovery Can Accommodate Separation

of Powers Concerns.

Even if this Court were to determine that the district

court's discovery plan implicates separation of powers

concerns, discovery should proceed under court supervision.

Any risk of intruding on executive powers must be balanced

against the important goals of FACA. Cf Public Citizen v.

DOJ, 491 U.S. 440, 484 (1989) (Kennedy, J., concurring);

Morrison v. Olson, 487 U.S. 654, 695 (1988). That balance

can be achieved by affording plaintiffs limited discovery to

resolve the threshold questions of whether and how FACA

applies to the NEPDG. Cf Natural Res. Def Council v.

Pena, 147 F.3d 1012, 1024 (D.C. Cir. 1998) (permitting

limited discovery in FACA action to resolve standing issue).

Disclosure of who participated in NEPDG meetings would

threaten no material encroachment on_ executive

deliberations.

Judicial application of the Freedom of Information

Act illustrates how courts can shape discovery to avoid

unnecessary burdens. To permit challenges to exemptions

claimed under that statute without compromising the

assertedly confidential nature of materials at issue, courts

require that the government provide an itemized “index” of

withheld documents that describes each record or withheld

portion and the grounds for withholding each. See Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S.

977 (1974). Vaughn stressed that “It is vital that some

process be formulated that will (1) assure that a party’s right

to information is not submerged beneath governmental

obfuscation and mischaracterization, and (2) permit the court

system effectively and efficiently to evaluate the factual

nature of disputed information.” /d. at 826.

19

Courts can follow analogous discovery procedures

under FACA. Threshold discovery can permit disclosure of

very specific aspects of an advisory committee's operation

without disclosing the content of any discussions. In this

case, for example. discovery could begin with the disclosure

of records that would reflect whether private parties such as

energy company executives attended NEPDG meetings.

Such initial disclosures might well provide sufficient

information for the parties and the District Court to

determine whether FACA applies, or whether some further

discovery is warranted.

The government misunderstands FACA when it

insists that this case must be dismissed unless plaintiffs can

present verifiable proof — before any discovery — that

industry executives and lobbyists participated in NEPDG.

FACA places the burden of disclosure on the government.

By starting with discovery of who attended NEPDG

meetings, the trial court may be able to resolve the case

entirely, or may determine to allow further discovery, subject

to any assertions of executive privilege. Such a deliberate

course would balance the open government principles of

FACA and of the Constitution against any legitimate

executive branch concerns.

Ill. Application of FACA to the NEPDG Would Not

Disrupt the Separation of Powers.

Even if this Court were to reach the separation of

powers issue raised by Petitioners, FACA should not be

found unconstitutional. By refusing to participate in

ordinary judicial processes, the government claims an

unprecedented authority in the domestic arena. There is no

textual basis in the Constitution for the government’s

contention — without any assertion of executive privilege —

that compliance with discovery necessarily will injure the

separation of powers. To the contrary, in inter-branch

disputes this Court has long approved the assertion of

20

executive privilege through ordinary litigation processes.

thereby providing a sufficient vehicle for assertion of

executive interests. Petitioners offer no adequate basis for

the Court to repudiate this deliberate approach in favor of the

blanket executive prerogatives they demand.

A. The Separation of Powers Is Based on

Checks and Balances, Not Executive

Primacy.

In responding to claims of executive power in the

domestic sphere, this Court has employed a balancing

approach. “[Sjeparation of powers does not mean that the

branches ‘ought to have no partial agency in, or no control

over the acts of each other.” Clinton v. Jones, 520 U.S. at

703 (quoting THE FEDERALIST No. 47 (Madison) (J. Cooke

ed., 1961)); see also Loving v. United States, 517 U.S. 748,

773 (1996) (“Separation-of-powers principies are vindicated,

not disserved, by measured cooperation between the two

political branches of the Government, each contributing to a

lawful objective through its own processes.”); Morrison, 487

U.S. at 693-94 (rejecting rigid division of powers between

branches). Instead, the Court examines whether the

challenged act of a co-equal branch impermissibly

undermines the power of the executive to accomplish its

constitutional functions.

In Mistretia v. United States, this Court summarized

the “pragmatic, flexible view” of the separation of powers

(488 U.S. 361, 381 (1989) (citing THE FEDERALIST No. 51, at

349 (Madison) (J. Cooke ed., 1951)):

In adopting this flexible understanding of

separation of powers, we simply have

recognized Madison’s teaching that the

greatest security against tyranny — the

accumulation of excessive authority in a

single Branch — lies not in a hermetic

21

division among the Branches. but in a

carefully crafted system of checked and

balanced power within each Branch.

The Framers believed that individuals, motivated by

self-interest and the force of faction, are often untrustworthy.

THE FEDERALIST No. 10 (Madison). “If men were angels, no

government would be necessary”; indeed, “If angels were to

govern men, neither external nor internal controls on

government would be necessary.” THE FEDERALIST No. 51,

at 319 (Madison) (Clinton Rossiter ed., 1961).

Consequently, the Framers refused to entrust absolute

power to a single individual like the English King. By

dividing the federal government into three branches, each

with its own sphere of powers and interests and each with

some means of checking and balancing the others. the

Framers sought to prevent the exercise of arbitrary power.

See Loving, 517 U.S. at 756-57; New York Times v. Sullivan,

376 U.S. at 269-76. Indeed, viewing secrecy in government

as an instrument of tyranny, the Framers insisted that

representative government must be open to public

observation. See pp. 5-7, supra. Thus, the separation of

powers was first and foremost a reaction against the

concentration of power. Congress enacted FACA to ensure

public oversight of executive functions, consistent with

Madison’s admonition that “ambition must be made to

counteract ambition” in order that one branch not usurp the

powers of the others. THE FEDERALIST No. 51, at 319

(Madison) (Clinton Rossiter ed., 1961).

B. The Constitutional Text Does Not Support

Petitioners’ Asserted Executive

Prerogatives.

The constitutional text provides no basis for the

government's assertion that the executive is free to ignore -

FACA. As held in Clinton v. New York, 524 U.S. 417, 438

22

(1998), “There is no provision in the Constitution that

authorizes the President to enact. to amend, or to repeal

statutes.” To support their bid to expand executive

prerogatives, petitioners turn to the Recommendations and

Opinions Clauses of Article II]. Those modest textual

provisions reinforce the view that nothing in this case

threatens harm to valid executive interests.

The Recommendations Clause states that the

President “shall . . . recommend to [Congress’]

Consideration such Measures as he shall judge necessary and

expedient.” U.S. Const., art. Il, § 3. This unremarkable

power — which certainly would exist even if not included in

the text — is in no way threatened by announcing those

private individuals who participate on advisory committees,

or disclosing the proceed!xgs of such groups. Moreover, as

Judge Silberman wrote in Association of American

Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 908

(D.C. Cir. 1993), the Recommendations Clause provides a

“somewhat artificial” basis for challenging the

constitutionality of FACA, as almost any policy advice to the

President carries with it the possibility of legislative

recommendation.

Petitioners nonetheless assert that application of

FACA to the NEPDG would “inhibit, confine, or control the

process th{rjough which the President formulates the

legislative measures he proposes or the administrative

actions he orders.” Br. for Petitioners at 15. This assertion

is a false alarm. The statute provides solely that the public

must know when private interests become part of a formal

process for recommending public policy, so it can follow

that process. See J. Gregory Sidak, The Recommendations

Clause, 77 Geo. L. REV. 2079, 2091-92 (1989). Nothing in

those elements of FACA has a material impact on the

President’s ability to make recommendations to Congress.

23

Rather, FACA achieves the public accountability that

Hamilton recognized is essential for representative

government:

Jt often becomes impossible, amidst mutual

accusations, to determine on whom the blame

or the punishment of a pernicious measure, or

series of measures, ought really to fall. It is

shifted from one to another with so much

dexterity, and under such plausible

appearances, but the public opinion is left in

suspense about the real author. The

circumstances which may have led to any

national miscarriage or misfortune are

sometimes so complicated that where there

‘are a number of actors who may have had

different degrees and kinds of agency, though

we may clearly see upon the whole that there

has been mismanagement, yet it may be

impracticable to pronounce to whose account

the evil which may have been incurred is truly

chargeable.

THE FEDERALIST No. 70, at 426 (Hamilton) (Clinton Rossiter

ed., 1961). As Judge Silberman noted, for thirty years since

FACA was enacted, Presidents have received confidential

advice and proposed legislation without complaint about

FACA-imposed procedures. See 997 F.2d at 908.

The Opinions Clause provides even less support for

petitioners, stating only that the President “may require the

Opinion, in writing, of the principal Officer in each of the

executive Departments, upon any Subject relating to the

Duties of their respective Offices.” U.S. ConsrT., art. Il, § 2.

As Justice Jackson wrote, this describes a “trifling” power

which is “inherent in the Executive if anything is.” See

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641

& n.9 (1952) (Jackson, J., concurring). Hamilton concurred

24

in this view: “This [the Opinions Clause] | consider as a

mere redundancy in the plan, as the right for which it

provides would result of itself from the office.” THe

FEDERALIST No. 74, at 447 (Clinton Rossiter ed., 1961).

FACA in no way prevents the President from

exercising his Opinions Clause powers. The Act applies

only where advisory committees are composed of members

other than public officials, leaving the President entirely free

to obtain written opinions from his cabinet officers. Indeed,

the Act specifically exempts from its coverage any

“individuals” and committees composed solely of

“principal” officers of agencies.

Because these textual provisions are so mild,

petitioners here can assert only “general” or “inherent”

executive powers.'” As Justice Kennedy observed in his

concurring opinion in Public Citizen, 491 U.S. at 484, where

only such general executive powers are asserted, the

appropriate question is whether the challenged legislation is

justified to promote objectives within the authority of

10

The Appointments Clause, referred to by petitioners in a

glancing manner, is actually protected and reinforced by plaintiffs’

suit. Plaintiffs do not challenge the President’s appointment of

cabinet-level and other executive branch employees to the

NEPDG. Rather, they have acted out of concern that de facto

committee members may have improperly influenced the advice to

the President. Thus, they seek to vindicate his formal

appointments and determine whether they were undermined by de

facto members. Cf Public Citizen, 491 U.S. at 467 (Kennedy, J.,

concurring) (separation of powers inquiry depends on nature of

executive power at issue).

25

Congress. FACA’s open government objective plainly is

within the authority of Congress. '!

“ Petitioners’ constitutional claims could be resolved by the

analysis in Nixon v. Administrator of General Services., supra,

where former President Nixon challenged legislation seizing his

official papers, contending that the statute interfered in executive

branch matters. See 433 U.S. at 440. Rejecting that argument,

this Court stressed that the executive branch (though not Nixon)

would retain custody and screening of the materials, allowing

disclosures to be opposed on the basis of legal rights or privileges.

See id. at 443-44. FACA provides analogous protections. The

executive branch initially determines whether to apply the Act,

whether to invoke its explicit exemptions from coverage, or

whether to assert executive privilege.

26

ae Dele ee

ee

CONCLUSION

For all of these reasons, amici respectfully urge the

Court to return the matter to the district court for discovery

to proceed.

Respectfully submitted,

DAVID OVERLOCK STEWART

Counsel of Record

THOMAS M. SUSMAN

THOMAS W. BEIMERS

Ropes & GRAY LLP

One Metro Center

700-12th Street N.W.

Suite 900

Washington, D.C. 20005

March 11, 2004 (202) 508-4600

27