THE ONGOING FIGHT BETWEEN THE SUPREME COURT AND CONGRESS, AS ILLUSTRATED BY THE GAO/CHENEY SUIT:
Part Two Of A Series On Shrinking Congressional Powers

By JOHN W. DEAN
Friday, Oct. 25, 2002

This is Part Two of a two-part series by Dean on threats to Congressional power from the White House and the Supreme Court during the war on terrorism. Part One appeared earlier on this site.

Note: Since writing and posting this column I have learned more about the special attention being given this case by the Executive Branch. In fact, it is unique in the history of the Department of Justice. Normally, this case would have been handled by the Civil Division of the Justice Department. But this case is one of a select few being handled by a newly created special unit under the direction of Deputy Solicitor General Paul Clement. I've learned from high level sources in the Justice Department that the creation of this special trial unit has so offended career attorneys (who view themselves as professionals not partisans) that they have been quitting (which is a great loss of legal talent for the government). Not only is this nameless ad hoc group representing Vice President Cheney, but no less than the Solicitor General himself, Theodore Olson, was seated at the trial table in the Judge Bates's courtroom during the recent augment. Typically, the Solicitor General only appears before the U.S. Supreme Court. For the SG to appear in the U.S. District Court was clearly designed to send a message to the Judge of the unusual importance the Bush-Cheney Administration has given this case -- not to mention to prepare the SG for later arguing the case before higher courts.

In Part One of this series, I described how the White House's expansion of executive powers has threatened Congressional powers. In this part, I'll discuss the way the Supreme Court is hampering Congressional power as well - and how it may continue to do so in an important pending lawsuit.

The High Court's recent efforts to realign the Constitutional powers of Congress is old news to those who follow the Court. These precedents, which are slowly draining Congress's powers, pose a long-term and not an immediate threat. Each case has been but an incremental shift of the power plates along the fuzzy separation of powers fault lines.

There is nothing incremental, however, about the Bush-Cheney White House's recent efforts to use the courts to literally chop off Congressional oversight authority of the Executive branch.

The Supreme Court Versus Congress? The Federalism Cases

This fact has been apparent since 1995. That was the year the gang of five (Rehnquist, Scalia, Thomas, Kennedy and O'Connor) began circumscribing the power of Congress to address national problems.

Two of the main constitutional bases for Congress to take nationwide actions are the Commerce Clause and the Fourteenth Amendment; the Court has limited Congress's power under both. In addition, the Court has expanded the immunity of states from money damages, despite Congress's expressly providing such a remedy for plaintiffs who sue the states.

Sadly, even the more moderate justices have not been hesitant to join in flexing the Supreme Court's - and the Judicial Branch's - muscle in denying Congress judicial assistance.

The White House's Use Of The Courts To Impede Congress

Now the White House is relying on these very anti-Congress precedents in its attempt to employ the federal courts - and ultimately the Supreme Court itself - to dramatically diminish Congressional power. Not content with the steady onslaught of anti-Congress precedents from the Court, the White House will prompt the Court towards an even more aggressive foray to expand executive, and contract legislative, authority.

As I've discussed at length in a prior column, Vice President Cheney recently forced the General Accounting Office to file an unprecedented lawsuit, when he refused to provide any information about his National Energy Policy Development Group. Cheney put GAO to an impossible choice: Go to Court, or concede it did not really possess the fundamental powers Congress gave it.

If Cheney can win and withhold the information requested, the consequences will be grave. To paraphrase the words of GAO's Comptroller General, David Walker, the Bush-Cheney Administration will have insulated the activities of the Vice President from scrutiny, violated the principles of transparency and accountability essential to a democracy, and decimated the oversight and investigative powers of Congress.

This high-stakes lawsuit is now proceeding in the United States District Court for the District of Columbia, before Judge John Bates. It is difficult to imagine a more significant case for any federal judge, nor a hotter political issue to test judicial impartiality.

Who Is Judge John Bates?

Judge Bates's judicial record (and proclivities) are a blank slate. All that is known about him is his biography and his background. He is 55 years of age, and had an extensive career as a litigator. After Bush nominated Bates, he was deemed "well qualified" by the American Bar Association's Standing Committee on the Federal Judiciary, which is their highest rating.

Bates was the long-time head of the civil division of the District of Columbia's U.S. Attorney's Office. During Independent Counsel Ken Starr's investigation of President Bill Clinton, Bates was detailed by the Justice Department to Starr's office, where he spent two and a half years before entering private practice.

While working for Starr, he supervised the probe of Vince Foster's death, and the disappearing and reappearing billing records from Hillary Clinton's law firm. Bates is one of the few senior attorneys to emerge from the Starr office with his reputation intact.

Even Bill and Hillary Clinton's friend and private lawyer David Kendall supported the nomination of Bates. Kendall found Bates "intelligent, straightforward, and ethical, ... not at all arrogant or abrasive," adjectives Kendall would be unlikely to apply to many on the Starr team.

Those who know Bates well, including liberal Democrats, find him apolitical. Or "politically gray," as one said. That fact is reflected in his Senate confirmation vote: 97 to 0.

Cheney v. Walker has been briefed and argued. It is now in the hands of Judge Bates for decision. But regardless of who prevails, the briefs and arguments make clear that Judge Bates will not have the final word, only the first word. Ultimately, the case will make its way up to the Supreme Court.

The Pending Motion For Summary Judgment

The Comptroller General of GAO filed an action for declaratory and injunctive relief. Translated into lay terms, that means he called on the Federal judiciary to compel the Vice President to hand over the documents about the energy task force that GAO was requesting.

There were really no facts in dispute. Accordingly, and appropriately, GAO's lawyers - the general counsel's office of GAO, which is being represented in court by the Washington law firm of Sidley Austin Brown & Wood LLP - filed for summary judgment to resolve the legal issues.

These include Cheney's initial brief and final brief in support of motion to dismiss, and his Response to Plaintiff's Statement of Material Facts. Anyone interested in the unfolding of an historic case should also peruse both the GAO memoranda in support of the motion for summary judgment and the Vice President's opposition papers.

GAO's briefs are excellent, but I must say that the papers filed by the Vice President's lawyers are even better. But then the Vice President is able to retain the best appellate law firm in Washington - the Office of the Solicitor General of the United States. Cheney has bypassed the Department of Justice's Civil Division: Though it is on the briefs, the lawyers running the case are clearly from the SG's office.

The Vice President's papers are superior in part because his attorneys are clearly building their case to take to the Supreme Court, realizing that is where this case will be resolved. Accordingly, they have drawn heavily upon holdings of the Rehnquist Court that are less than supportive of Congress.

These holdings, predictably, were created by the Rehnquist Court's gang of five. Readers will also notice references to the Watergate era cases resulting from Nixon's refusal to provide information.

Indeed, not since Nixon's days in office has a president worked harder to keep secrets and the operations of the Executive branch from public scrutiny. (As I commented in an earlier column, this is not the only parallel between the Nixon, and the current Bush, Administrations)

A Supreme Court That Earlier Robbed Congress of Power, in Bush v. Gore

Rather than go through these briefs, which can be easily understood even by readers who are not attorneys, I merely wish to highlight and summarize what I find to be the Vice President's strongest and weakest arguments. On the whole, I find his collective body of assertions politically remarkable - nothing less than chutzpa on stilts and steroids.

Yet that, of course, does not necessarily mean that they will fail. To the contrary, given the precedents being written by the Rehnquist Court, they may well prevail.

Remember, this is a Supreme Court that had no reluctance to resolve the 2000 presidential election - which should have been resolved by Congress. That same Court obviously will not be shy about repealing a law that Congress wrote in 1921 - the law that implemented its investigative and oversight powers by creating the GAO. Nor will that same Court refrain from gutting Congressional power vis-a-vis the White House.

Those are the odds the GAO is facing in its attempt to avoid being thrown out of Court.

The Strongest Argument By The Vice President Is On The Matter Of Standing

Standing to bring a lawsuit is essential. "Standing" is the legal requirement that a particular plaintiff be the right plaintiff to bring the suit. Here, the standing question is whether GAO has the right to go to court to sue Cheney. (The right to sue in the first place is very different from the underlying right the suit will, if allowed to continue, adjudicate - here, the right to the documents requested.)

Congress granted GAO power to file its lawsuit. Nevertheless, Vice President Cheney is arguing that, under existing Rehnquist Court precedents, GAO must be tossed out of court for lack of standing. The Vice President relies almost exclusively on Raines v. Byrd.

The Crucial Precedent Of Raines v. Byrd

Raines v. Byrd addresses the question whether six Members of Congress had standing to sue under the Line Item Veto statute.

The question seemed a simple one: The statute expressly said that "[a]ny Member of Congress or any individual adversely affected by [this Act] may bring an action . . . ." But the Court held that despite this explicit grant of standing, no standing existed.

The Court reasoned that the Members of Congress who had filed the suit should not have standing to sue because, according to the Court, they had suffered no real injury; the injury they claimed Congress had suffered was abstract; and Congress had other remedies (such as repealing the challenged law). The Court also pointed out that the Members had not been "authorized to represent their respective Houses of Congress in this action, and indeed both Houses actively oppose their suit."

Cheney's lawyers contend that the statute that authorized GAO to file its suit is similarly unconstitutional, under the precedent of Raines. The issue is crucial: if the Vice President is right, the case will be dismissed with prejudice for lack of standing.

Cheney also argues that the GAO statute, which allows suit against the "head of [an] agency" does not allow suit against the Vice President. But this argument ought to be a loser.

GAO has rather clearly established in its brief that Congress meant the term "head of [an] agency" to include the President and Vice President. Nevertheless, again relying on Rehnquist Court precedents, the Vice President claims that this is not enough: there must be a "clear statement" of GAO's authority before it can sue the Vice President. Cheney is apparently arguing the Vice President must be specifically listed to fall within the statute.

This is pure legal sophistry. The legislative history could not be clearer as to Congress's intent. Indeed, the GAO law was amended precisely because Congress had problems in dealing with the White House.

Cheney makes a similarly unpersuasive argument when he claims that Congress went too far in empowering GAO to "investigate all matters related to the receipt, disbursement, and use of public money" - including "the purpose, efficiency, and legality" of such uses. Unable to deny the obvious point that Congress has power to audit the "use of public money," he claims instead that not all uses of Treasury money are uses GAO can examine.

To make their point, Cheney's attorneys distort and exaggerate what it is that GAO seeks by their lawsuit - listing examples of audits that GAO purportedly claims power to conduct, in order to horrify the court.

For instance, they incorrectly claim that under GAO's reading of the statute, GAO could "review memoranda and meetings between law clerks and their judges in the guise of assessing their 'efficiency' and whether government pens and pencils could better be dedicated to other 'purposes,'" and could inquire into "whether and how often the President should hold Cabinet meetings, how long particular matters should dominate the agenda, and who should attend those meetings...."

This parade of horribles is ridiculous, and misrepresents GAO's position. Clearly, Cheney's counsel know that Congress has every right to audit expenditures of federal funds.

This argument should not be taken seriously - but the standing argument, I predict will be, and we may see it being made in front of the Supreme Court soon enough. This will be the real issue before Judge Bates: Can the Vice President use the standing argument to block the lawsuit?

Even the Vice President admits the President has not yet claimed executive privilege for this information - and can do so if GAO prevails. So this is really a test as to whether Congress can use the courts to obtain information from the Executive branch without a subpoena. Let us hope, for the country's sake, that the courts - and ultimately the Supreme Court - say it can.


John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.

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