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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0712%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 367

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0712%3A12. Public record. Not legal advice.