Proving that a watchdog's bark is often worse than its bite, two federal courts have ruled that Vice President Richard Cheney does not have to turn over private energy task force meeting documents. At least not yet.
On December 9, Judge John D. Bates of the U.S. District Court for the District of Columbia ruled that Congress' watchdog, the General Accounting Office (GAO), led by Comptroller General David M. Walker, lacked standing to sue Vice President Dick Cheney for access to the records of the energy task force. In his ruling, Judge Bates stated that "[t]here is no doubt here that the issues framed by the parties invoke core separation of powers questions at the heart of the relationship among the three branches of our government."
Judge Bates added that, in his assessment of whether the Comptroller General has asserted a sufficient injury to establish standing, "the Court must therefore be mindful that the standing inquiry should be 'especially rigorous' because reaching the merits of this dispute could require deciding whether an action taken by one of the other branches of government was unconstitutional."
Named to the bench by President Bush, the Judge is being attacked for his decision, with some arguing that he took the easy way out by deciding the case on the jurisdictional grounds of standing, rather than on the merits. Others are critical for what they see as a crushing loss for the public's right to know, coming at a time when Americans are demanding more accountability from their government and corporate leaders.
Putting politics on a short leash, Judge Bates' naysayers should pay close attention to the difficult constitutional issue that the Judge appropriately addresses, namely, "the restricted role of the Article III courts in our constitutional system of government." Rather than criticize the Judge, they should applaud him for his dogmatic approach and for exercising judicial restraint - something that is increasingly rare in this day of judicial activism.
The decision analyzes the Comptroller General's Article III standing in a constitutional context and concludes that Mr. Walker does not have the personal, concrete and particularized injury required under the standing doctrine. Judge Bates then concludes that "[h]istorically, the Article III courts have not stepped in to resolve disputes between the political branches over their respective Article I and Article II powers; this case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information or authorized this suit, is not the setting for such unprecedented judicial action."
Reports at press time indicate that Mr. Walker has not decided whether he will appeal the decision. Congress' interest in the matter undoubtedly will determine whether the tail continues to wag this dog.
In a separate federal court ruling, the choke chain was tightened around the necks of the watchdog-plaintiff groups of Judicial Watch and Sierra Club. Last week, the U.S. Court of Appeals for the D.C. Circuit indefinitely delayed a lower court's order mandating that the White House produce energy task force documents about its meetings with industry representatives or provide a detailed list of the documents it is withholding. In separate suits now consolidated, the named organizations demanded release of the documents under the Federal Advisory Committee Act.
While granting the Justice Department's motion to stay the lower court order pending appeal, the three-judge panel of the Court of Appeals threw a bone to the organizations, stating that the purpose of the stay "is to give the court sufficient opportunity to consider the merits of the case and should not be construed in any way as a ruling on the merits." Regardless, it is seen as a blue-ribbon victory for the White House and a reprieve for Vice President Cheney.
If the Court of Appeals gets it right and dismisses this lawsuit, then we can get out the pooper-scooper and clean up this mess. Until then, the doggedness of these organizations means Mr. Cheney should not get comfortable sitting on his haunches. Defending the Constitution and the separation of powers requires continued pugnaciousness.
To read about how these cases developed, click here.December 12, 2002
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