But the legal arguments are strikingly similar, projecting a vision of presidential power in both war and peace as far-reaching as any the court has seen and posing important questions of the constitutional separation of powers.
Just as the administration is arguing in the detainee cases for the exercise of presidential authority without judicial interference in policies related to the war on terrorism, it is making sweeping claims in the energy case for the existence of a constitutionally protected “zone of autonomy” for presidential advice received in the ordinary course of proposing legislation.
In this case, which the court will hear on Tuesday, the administration is appealing a judicial order permitting limited inquiry into who outside the government provided advice to Vice President Dick Cheney’s energy task force in early 2001. The organizations seeking the information maintain that the formal list of the task force’s members — the vice president, six cabinet members and four other government officials — did not tell the whole story, and that energy industry officials were so closely involved with the deliberations as to have become de facto members.
As its primary argument, the administration asserts that the order permitting pretrial discovery is based on a mistaken interpretation of the Federal Advisory Committee Act, a 1972 law at the center of the dispute over how the task force conducted its business.
But if the law, properly interpreted, really does support the discovery order, the administration argues, the law itself is “plainly unconstitutional” in authorizing “unwarranted intrusion” and “extreme interference” with the president’s exercise of his “core” constitutional responsibilities.
“Congress does not have the power to inhibit, confine or control the process through which the president formulates the legislative measures he proposes or the administrative actions he orders,” Solicitor General Theodore B. Olson’s brief asserts.
The administration’s opponents say the breadth of this argument calls into question long-settled assumptions about the ability of both Congress and the courts to conduct the necessary oversight of executive branch activities and ensure openness in government. “It is an extraordinary assertion of executive power and privilege,” Thomas Fitton, president of Judicial Watch, one of the two plaintiffs in the lawsuit, said this week at a symposium on the case sponsored by the Federalist Society, the conservative legal policy organization.