September 1, 1939. Adolf Hitler's Nazi Germany invades and defeats Poland. Within a year, Hitler has invaded and secured the surrender of most of western Europe, including Norway, Denmark, Belgium, the Netherlands, Luxembourg, and France. By August 1940, Hitler had turned his sights on Great Britain, and the Battle of Britain had begun. Although official U.S. policy was one of neutrality, and in November 1939 Congress had approved arms sales to the European belligerents only on a cash-and-carry basis, Great Britain was fast running out of money and material.
President Franklin Roosevelt did what was required. He knew that America was not yet ready for war — either physically or psychologically, but he well understood that sustaining British opposition to Hitler was critical to the ultimate security of the United States. He and his top advisors, therefore, secretly negotiated the Lend-Lease Agreement with Great Britain, pursuant to which the U.S. would provide warships and aircraft to Great Britain in exchange for leases for air and naval bases on British possessions in Newfoundland, British Guiana, Bermuda, and other West Indian islands. Undoubtedly his policy was developed after consultation not just with top cabinet officers but with heads of industry as well. Had the negotiations and consultations been made public, it is very likely that the crucial agreement would have been scuttled before it ever got off the ground, and President Roosevelt's ability to carry out his constitutional duties as commander-in-chief and fulfill his constitutional obligation to take care that the laws be faithfully executed would have been severely, perhaps permanently, undermined.
Roosevelt was able to act because the authors of our Constitution gave him constitutional powers independent of the Congress. The office of the President was specifically designed so that it could operate with the secrecy and dispatch necessary in circumstances such as those Roosevelt faced. Article II of the Constitution authorizes the President to obtain written advice from his cabinet officers, and the only clause addressing whether that advice, or indeed any executive branch deliberation, had to be provided in public is the clause requiring the President to provide to Congress "from time to time" information on the state of the Union. Quite obviously, the principle at stake — the ability of the chief executive to perform his constitutional obligations without obstructive interference from another branch — is of the utmost importance. Had it not been followed in 1940, the result would in all likelihood have been disastrous.
Fast forward now to 2001. California is in the middle of an energy crisis that is threatening to undermine the entire U.S. economy. Moreover, U.S. reliance on foreign oil has already involved it in a war in the Middle East, and the problems that precipitated that war have only grown worse. Shortly after taking office, President Bush creates an energy task force, the National Energy Policy Development Group, to develop recommendations regarding the future of United States energy policy. Vice-President Cheney is appointed to head the task force, whose members also include the Secretaries of Energy, Interior, Agriculture, Transportation, and Commerce, the Administrator of the Environmental Protection Agency, and the Director of the Office of Management and Budget. Following a tradition that dates back to the Constitutional Convention of 1787 itself, the group met behind closed doors so that its deliberations could be as candid as possible, and so that its recommendations to the President could be as comprehensive as possible. Nothing the task force did had the force of law. Its mission was, as envisioned by Article II of the Constitution, to provide advice and recommendations to the President.
In stark contrast to the secrecy that was permitted President Roosevelt, a federal Freedom of Information Act lawsuit was filed against the Department of Energy even before the task force issued its final report in May 2001, seeking access to the documents generated during the task force's deliberations. In late February, the federal district court in the District of Columbia ordered the Department of Energy to release documents responsive to the request, but in an aspect of the Court's order that has largely been overlooked by the major media, the order applied only to "non-exempt records"; the Department simply has to provide an index of records that it is withholding pursuant to one of several statutory exemptions. One of the key exemptions contained in the Freedom of Information Act is for materials generated during the deliberative process. Indeed, for the reasons discussed above, that statutory exemption is probably constitutionally compelled, for without it, not just Congress, but special interest groups can unduly interfere with the performance of the President's constitutionally-mandated duties.
Undoubtedly there will be challenges to the Department of Energy's anticipated invocation of the deliberative process exemption, but whatever the outcome of those challenges, the parallel lawsuit that was filed in February by the General Accounting Office against the Vice-President is even more troubling. Like the President, the Vice-President is a constitutionally elected officer in his own right. The Director of the General Accounting Office is not elected, and the agency as a whole is simply an arm of Congress. It would be a constitutionally troubling violation of the separation of powers if Congress itself demanded access to Executive branch deliberations, but it is simply beyond the pale to permit such an intrusion by un-elected agents acting at the behest of a couple members of Congress.
Although many members of Congress have grown arrogant in their assertions of individual power — witness, for example, the extraordinary claims being made by individual Senators who think they have the constitutional right to blackball the President's nominees to the judiciary, even while acknowledging that the nominees would be confirmed by large majorities if a Senate vote was ever held — unlike the President and Vice-President, members of Congress actually have no constitutional power to act unilaterally. Their constitutional power exists only as members of a legislative body, and the body acts only through the formal mechanisms of bicameralism and presentment — that is, passing laws by majority vote in both houses of Congress and presenting them to the President for signature (or later voting to override if the President chooses to veto rather than sign the proposed legislation).
The dangers inherent in the GAO's lawsuit against Vice-President Cheney should be obvious. As the facts of this particular case demonstrate, individual members of the Congress not of the President's own political party have sought to intrude upon the inner sanctum of the executive branch's deliberations, and stepped up their demands when the Enron collapse made it possible to score some much-needed political points. Just imagine the outcry were the tables turned, and the Attorney General filed suit asking for a list of every meeting Senator Leahy has held with other members of Congress or leaders of special interest groups such as Ralph Neas to discuss strategy for opposing the President's judicial nominations! However improper Senator Leahy's foot-dragging policy is, the intrusion by the executive branch into the legislature's business would be even more troubling.
More troubling still is the way in which the GAO lawsuit threatens to undermine rather than enhance accountability in the executive branch. The framers of our Constitution settled on a unitary executive in order to enhance accountability. The delegates to the constitutional convention debated whether to simply permit the President to obtain advice from his Department heads or whether there should be a permanent council of advisors to the President, much like the council of advisors to the English king. James Iredell, a member of the constitutional convention and a leading proponent of its ratification in the North Carolina ratifying convention, argued during the ratifying convention that the mechanism adopted in the Constitution was preferable to a formal advisory council. Such a council, he argued, would have pernicious consequences, for the President would be naturally inclined to say: "You know my council are men of integrity and ability: I could not act against their opinions, though I confess my own was contrary to theirs," and thereby avoid responsibility for his own actions, undermining the most effective check on the President's power.
Forcing the task force's deliberations into the public would have the same pernicious consequences. As it stands now, the policies being proposed to Congress are the President's, not the task force's or those of its individual members or even those of the industry and environmental leaders whose opinions were sought. As a result, the President alone will bear responsibility for them. If we expose the internal deliberations to public view, the President will be in the same position as James Iredell's hypothetical president, able to say that he had accepted the advice of his counselors against his better judgment and thereby avoid ultimate accountability for his actions. We would end up with either a completely unaccountable or a completely crippled government, or perhaps both. The stakes may not be as high for the energy task force's deliberations as it was for President Roosevelt's lend-lease deliberations, but principles lost when the stakes are low are just as certainly unavailable when the stakes are again high. Vice-President Cheney deserves our praise for recognizing just how important is the principle for which he is fighting. We can only hope the courts will recognize it, too.