“This is a case about the separation of powers,” Solicitor General Theodore Olson told the justices at the start of lively arguments about privacy in White House policy-making.
The nearly three-year fight over access to records of Vice President Cheney’s work on a national energy strategy came to the high court after a federal judge ordered what Olson called a broad, unconstitutional release of White House documents.
The White House is framing the case as a major test of executive power, arguing that the forced disclosure of confidential records intrudes on a president’s power to get truthful advice. Environmental and other interest groups claim the records will show whether the energy industry got special access or favors.
Justices were told that former Enron chairman Ken Lay and others were players, but until the government produces records, it won’t be clear if they actually drafted the government’s policies.
The legal issues in the case have been almost overshadowed by a political controversy involving Justice Antonin Scalia. He has refused to step down despite a controversy over a hunting trip he took with Cheney, an old friend, weeks after the high court agreed to hear Cheney’s appeal.
Scalia took his seat behind the court’s high bench as usual Tuesday, and almost immediately posed a hard question to the administration lawyer. Since the case concerns whether outsiders influenced the outcome of the task force’s work, why not release voting records of the energy task force, Scalia asked.
Told that such a disclosure would raise privacy concerns, Scalia sounded skeptical.
“All I’m saying is, why would that be such an intrusion … just to know whether anybody who voted on any of the recommendations was a nongovernment employee?” he asked.