The Unitary Executive and the Modern Presidency

The Unitary Executive and Secrecy in the Bush Presidency: The Case of the Energy Task Force Controversy

The Unitary Executive and secrecy in the Bush Presidency k The Case of the Energy Task Force Controversy mitchel฀a.฀sollenberger฀and฀mark฀j.฀rozell The George W. Bush administration was especially aggressive in its efforts to defend and expand what it considered constitutionally based presidential prerogatives. The terrorist attacks of September 11, 2001, certainly provided a powerful context in which an administration might seek to expand executive power. But Bush’s efforts to establish executive dominance in Washington preceded the terrorist attacks. Indeed, Vice President Richard Cheney had said early in Bush’s first term that the administration was committed to reversing a perceived trend of legislative encroachments on executive powers combined with weak presidential responses to those encroachments.1 Whether Cheney was correct in his estimation that the modern presidency has suffered at the hands of assertive Congresses is not the point of our analysis. Rather, it is important to present this framework of understanding at the outset in order to assess the administration’s efforts to protect its powers in the controversy over internal discussions regarding energy policy development. On January 29, 2001, President George W. Bush announced the creation of the National Energy Policy Development Group (NEPDG), better known as the energy task force.2 The group’s purpose was to develop “a national energy policy designed to help the private sector, and government at all levels, promote dependable, affordable, and environmentally sound production and distribution of energy for the future.”3 President Bush appointed various federal officials to the task force with Vice President Cheney as chair.4 The task force held a total of ten sessions between January and May 2001, with group members 146 : sollEnBErgEr and roZEll and staff conducting numerous supplemental meetings “to collect individual views” for future energy policy decisionmaking.5 These meetings included “nonfederal energy stakeholders, principally petroleum, coal, nuclear, natural gas, and electricity industry representatives and lobbyists”and, to“a more limited degree[,] . . . academic experts, policy organizations, environmental advocacy groups, and private citizens.”6 The task force issued its final report on May 16, 2001, and the group formally disbanded on September 30, 2001.7 The Bush administration resisted efforts by members of Congress and outside interest groups to make it reveal information about the task force meetings. This struggle developed into a full-blown legal controversy and ultimatelyaSupremeCourtdecisionthataddressedbroaderissuespertaining topresidentialsecrecy,theprotectionof internaldeliberationsinanadministration ,andseparationof powers.Inthischapterwedescribethecontroversy over the energy task force meetings and how this controversy developed into a major legal battle, and we then analyze the outcome of these events and its relevance to the administration’s theory of a unitary executive. Congress and the Energy Task Force Challenges to the secrecy of the task force began with a letter from Democratic representatives John Dingell and Henry Waxman on April 19,2001. They wrote the task force’s executive director, Andrew Lundquist, and requested that he answer“a series of questions relating to the participants, the purpose,the outcome,and the role of federal employees at these meetings ” and that he send “copies of all documents and records produced or received by the task force” under the Federal Advisory Committee Act (FACA).8 This act, originally passed in 1972, mandates that executive branch advisory committees adhere to various openness requirements, such as making available to the public their minutes,records,reports,and other documents.9 That same day,Dingell andWaxman wrote the General Accounting Office and encouraged Comptroller General David Walker to investigate the operations of the energy task force.10 These congressional requests were due in large part to press reports that the task force had been meeting in secret with representatives of various groups that had a direct interest in the development of the nation’s energy policy. After two weeks, the vice president’s legal counsel, David Addington, responded to theApril 19 letter.However,he refused to divulge significant information germane to the request and noted that “the FACA does not The Energy Task force Controversy : 147 apply to”the task force because section 3(2) of the act exempts“any committee that is composed wholly of”federal employees.11 Addington’s letter sparked an angry reply from Dingell andWaxman.Again,the congressmen stated that the energy task force was in violation of FACA—not only in failing to fully answer their questions but also by refusing to hand over all relevant documents.12 Meanwhile, the GAO, as a result of Dingell and Waxman...