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Suit Versus Cheney Is Dismissed by Neely Tucker Washington Post, December 10, 2002

Judge Gives Administration Broad Victory on Oversight

A federal judge in Washington ruled yesterday that the investigative arm of Congress has no legal standing to sue the vice president for refusing to turn over energy policy documents, a major victory for the Bush administration and a blow against congressional oversight of government affairs, scholars and analysts said yesterday.

The 40-page opinion by U.S. District Judge John D. Bates, in the suit brought by the General Accounting Office against Vice President Cheney, ruled that the GAO, which conducts hundreds of investigations into government affairs each year, has no personal or institutional right to bring almost any suit. Analysts said this means the agency might face trouble in enforcing its requests for information from any federal department.

"The case . . . engenders a struggle between the political branches that is historically unprecedented and that transcends both the specific information sought and the political identity of the legislative and executive branch players involved," Bates wrote in dismissing the suit. "This case, in which neither a House of Congress nor any congressional committee has issued a subpoena for the disputed information . . . is not the setting for such unprecedented judicial action."

The ruling was a triumph for the Bush White House, which treated the case as a vehicle for turning back what it has called a generation of congressional encroachment on the executive branch. If the ruling stands, it could severely weaken the GAO, and leave a president largely immune from aggressive congressional oversight unless the opposition party is in the majority.

Bates's ruling also was the second recent legal victory by the White House in its battles against several high-profile suits that seek access to the records of Cheney's National Energy Policy Development Group. Last week, the U.S. Court of Appeals in Washington indefinitely stayed a lower court order that would have forced the administration to turn over many of the same records the GAO sought, but to a coalition of private groups.

Taken together, the rulings vindicate the administration's position that the records should remain part of a shielded deliberative process, officials said.

"We believe it's important the president receive unvarnished advice in his decision-making, and the court has supported this," said a White House official, declining to speak for attribution.

"Allowing the GAO to sue the vice president without legal authority would improperly interfere with the president's ability to formulate the best possible policies for the American people," said Barbara Comstock, director of public affairs for the Justice Department.

Comptroller General David M. Walker, head of the GAO, said in a statement he was "very disappointed" by the ruling but did not say if the agency would appeal.

"We are in the process of reviewing and analyzing the decision to fully understand the bases for it and its potential implications," Walker said. "We will consider whether or not to appeal after we have completed this review and consulted with congressional leadership on a bipartisan basis."

The GAO, along with Judicial Watch, the Sierra Club and the Natural Resources Defense Council, have been seeking the task force records primarily because they say they are concerned the administration met almost exclusively with business interests in developing energy policy and largely excluded environmental groups.

They have sought the names of people who met with the task force, the transcripts and other details of those meetings. Other agencies which were also part of the task force, such as the Energy Department, have been sued and have turned over more than 30,000 pages of records.

Reps. John D. Dingell (D-Mich.) and Henry A. Waxman (D-Calif.) asked the GAO to investigate on May 7, 2001, writing that they were concerned about "the apparent efforts of the task force to shield its membership and deliberations from public scrutiny." Four senators later seconded that request.

The White House refused to provide information, even when the GAO dropped its request to see minutes and transcripts of meetings. That led to the first suit the GAO has filed in its 81-year history. Carter G. Phillips, the outside litigator hired by the GAO to try its case, said the lawsuit was necessary because the Bush White House was the first in history to deny the agency access to records.

The case was randomly assigned to Bates, who was appointed to the bench by President Bush last year.

Bates underscored the case's history-making status by basing most of his ruling not on the merits of the specific suit, but on a broader position -- the GAO's constitutional status to file any suit.

Ruling that the agency "is not an independent constitutional actor" and "does not have personal, concrete and particularized injury required" by law, he said that GAO, without at least the full backing of Congress, does not have standing to sue in federal courts.

That appears in direct contrast to a 1980 law that expressly gives GAO the right to sue. But the judge stressed repeatedly that the GAO had not been "authorized" by Congress to sue for the Cheney task force records and thus did not rise to the standards required in that law.

"If it stands, it's definitely precedent-setting," said Susan Low Bloch, a professor of constitutional law at Georgetown University Law Center. "It will make it a lot more difficult for the GAO to even negotiate for documents."

Waxman and Dingell both assailed the opinion yesterday, vowing to appeal.

"[A] Republican judge has decided that, once in office, Bush and Cheney can operate in complete secrecy with no oversight by Congress," Waxman said.