Woman Thou Art God: Bill Moyers

The upcoming Supreme Court case Cheney vs. U.S. District Court for the District of Columbia is Vice President Cheney's appeal of a lower court judge's order that his Energy Task Force produce documents requested by two non-profit groups, the Sierra Club and Judicial Watch. (Read Bill Moyers' interview with Judicial Watch's Larry Klayman on this case.)

UPDATE: On June 24, 2004, the Supreme Court gave Vice President Dick Cheney a partial victory in this suit, sending it back to the U.S. Court of Appeals for the D.C. Circuit for further adjudication. The Bush administration will not have to reveal details about Vice President Dick Cheney's Energy Task Force until after the election, as the Court noted the "paramount necessity of protecting the executive branch from vexatious litigation."

The case asks whether Vice President Cheney must reveal the names of the participants in his Energy Task Force (officially called the National Energy Policy Development Group) as well as some of the group's records. As former federal prosecutor Edward Lazarus explains it: "Watchdog groups hope this information will confirm suspicions that the task force was stacked with Vice President Cheney's former cronies from the energy industry who used their insider status to shape Bush's pro-business, anti-environment energy policy."

Under the Federal Advisory Committee Act (FACA), committees formed to advise the government on policy matters are required to have both "balanced membership" and "open meetings" unless the groups are strictly comprised of government employees. The Bush Administration has claimed that the Task Force is exempt because it included no members from outside the government. When requested by the General Accounting Office to provide documents proving this, Vice President Cheney refused, citing the President's right to confidential advice. Judicial Watch and the Sierra Club are challenging this.

Last winter, Supreme Court Justice Antonin Scalia went on a duck-hunting trip with a group that included Vice President Cheney. The Sierra Club demanded Scalia's withdrawal from the case in question, arguing that "by the objective standard required by federal law, Justice Scalia's impartiality has reasonably been called into question, and he must be recused."

The Supreme Court decided to let Scalia make the call for himself, and Scalia issued a memorandum explaining why a recusal was not necessary in this case. Despite this still controversial issue, the case is headed for the Supreme Court on April 27, 2004.

Judge Emmet Sullivan of the U.S. District Court for the District of Columbia handled the case at the trial level and decided against Vice President Cheney, a decision which was appealed by Vice President Cheney several times and eventually accepted for review by the U.S. Supreme Court. As quoted in a FindLaw column by John W. Dean, Sullivan wrote that "The implications…are stunning." Sullivan explained what a victory for Vice President Cheney in the case would mean:

"Any action by Congress or the Judiciary that intrudes on the president's ability to recommend legislation to Congress or get advice from Cabinet members in any way would necessarily violate the Constitution. The Freedom of Information Act and other open government laws would therefore constitute an unconstitutional interference with Executive authority. Any action by a court or Congress that infringes on any other Article II power of the President, for example, the President's role as Commander in Chief of the armed forces and the national security concerns that derive from that role, would violate the Constitution. Any congressional or judicial ruling that infringes on the President's role in foreign affairs, would violate the Constitution."

Acknowledging the widespread public interest in its proceedings, the U.S. Supreme Court has announced that it would release audiotapes of the oral arguments in this case shortly after they end.