Constitutional Law Class Notes 3/2/04

We are moving from the structural half of the course to a focus on individual rights, especially those protected by the Fourteenth Amendment. We’ll return to power questions at the end of the semester. We’ll also read the briefs for Padilla when they come out.

Few people volunteer when they don’t have to. Foley says that we should all chip in! Take the opportunity to benefit from Foley’s feedback!

Note that class participation is part of your grades. It’s not just what you say when you get called on, but also what you volunteer. But don’t say dumb stuff! Make good points and you’ll get points! That’s the carrot.

The stick is that at some point we’ll have gone finished going on call. Foley is considering whether to have everyone on call at that point. If Foley thinks that people aren’t volunteering enough, he may push for the traditional method.

In re Cheney

This case, in many ways, is a perfect juxtaposition to Nixon. We’ll explore differences between the two cases.

This is a difficult case because of the terminology involved and the complex rules of suing the government. It’s hard to sue the government! That might be good or it might be bad, but being a plaintiff in a lawsuit when the defendant is a government agency or government official raises many procedural questions. The course to take in order to best understand this is Administrative Law. If there’s any one course that you take as an upper level student, Foley encourages us to take this one course. He says that it’s the hardest area of law to teach yourself in practice. It may not be on the bar, but if you don’t learn it in school, you’ll have a hard time picking it up later. It’s a difficult class because it’s not a traditional subject matter. You’re not so much learning a subject matter as you’re learning a methodology or mode of analysis. This case gives us a flavor for just how difficult it is.

The plaintiffs in this case are the Sierra Club and Judicial Watch. They are suing Vice President Cheney and others. Why? They accuse Cheney and others of violating FACA.

Isn’t the concept of an advisory committee that you have people outside the government giving the government advice? Wouldn’t you want to bring in outside experts to clue you in on important topics? But if there are non-governmental personnel involved with these meetings, the records of the meetings must be open to the public. The Administration claims that these meetings did not include any outsiders, and therefore the records should not be made public. Cheney claims that under the law they do not have to make the proceedings of the committee public.

The plaintiffs claim that there were outside officials who had a hand in the drafting of the policy put out by the committee. But…so what? They issued a report, and you can read that report. Isn’t that the important thing? Shouldn’t the public only be concerned whether the policy is good or bad? What’s the counterargument?

The Sierra Club wants to know who was at the meetings, what was said, and who is really influencing the Administration’s policy. Does this energy policy favor “big oil”? Wasn’t “big oil” elected to the White House, Foley asks? What’s really going on? Why do the organizations want these names? They want to know if Ken “Enron” Lay was at the meeting. Why would we want to know that? There are a couple of reasons.

1. It would be politically embarrassing to have an Enron person advising energy policy.

2. More importantly, Enron was Bush’s single largest campaign contributor in the 2000 campaign. That’s where the real allegation of corruption comes in: Did Enron’s campaign contributions inappropriately buy the company a seat at the table? Was there a quid pro quo? Could this lawsuit prove a quid pro quo?

The lawsuits might expose what was said at the meeting and who was there. But it’s unlikely that any discussions during the meetings would actually reference campaign contributions. All that these lawsuits could reveal would be that campaign contributors were participating in the committee. But that’s all you can get! Is that a reason to not let the lawsuit go forward?

Contrast this with Nixon’s tapes. John Dean claimed that he was in the Oval Office when there was a conspiracy to cover up Watergate. The tapes could prove whether there was a crime or not. The connections were very close!

The Sierra Club and Judicial Watch don’t allege any particular crime. Even if the predicate allegation is that Lay was at the meeting and that he was a campaign contributor, they can’t show that airing these records would prove a crime of any kinds.

Presidents are entitled to meet with CEOs of corporations. FACA covers advisory committees. Is FACA constitutional? Every time the president decides to ask American citizens for advice, he has to jump through certain hoops. Is that something that Congress can force the president to do? Is this, in itself, a Separation of Powers issue?

Do we have an equivalent parallel in this case to Nixon? Will this case feel like Watergate to the Supreme Court? Is this an evil president who we have to stop from subverting the system of government? According to Foley, this case isn’t going to feel like Watergate. Foley believes that this will be dispositive. The Court will find doctrine that will support this conclusion. Foley thinks the Court will find it inappropriate to subject the Vice President and cabinet-level officials to be subject to document requests like the one at issue in this case.

Even if there is a real risk that Ken Lay improperly influenced the Bush Administration, the FACA law wasn’t designed to prevent such influence. If you want to prove that something was done improperly as far as campaign contributions, you’ll have to narrow your target. To win a case under the terms of FACA, you don’t have to prove anything about campaign contributions, because it doesn’t matter who was meeting with the president and it doesn’t matter whether they gave money or not.

This large has the potential to be hugely broad. Sierra Club and Judicial Watch have proffered no evidence that Ken Lay was at the meeting. They just think he was there. Yet, on the face of the statute, high level government officials could be exposed to a very expensive and time-consuming process. Foley thinks that the Court will not let Congress do that with this law and will send them back to the drawing board.

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