Man oh Mandamus

The Supreme Court has decided Cheney v. District Court [link], putting behind it (at least for now) some of the controversy that the case engendered for the Court.

Some quick observations:

First, as much as I think that Justice Scalia acted inappropriately in not recusing himself from this case in the face of the duck-hunting flap, a 7-2 decision (which this was) takes some of the wind out of the argument that he would improperly skew the process. The fact is that a broad majority of the court felt that the Court of Appeals decision was flawed, and said so.

Second, although the media will surely make this out to be a broad victory for the Bush Administration, this case turned on a fairly narrow legal principle, and did not grant the Administration's petition, but merely gave guidance to the appellate court on the proper scope of its mandamus powers and directed it to reconsider its previous ruling. In essence, the Supreme Court punted. Now, obviously, that has political implications since the follow-on litigation is likely to drag on until after November, but in principle, the Supreme Court did not vindicate the Bush administration's argument.

Third, I was struck by the paradox that is presented by the Federal Advisory Committee Act ("FACA") in this case. In essence, the dispute boils down to this: the plaintiffs sued the government claiming that Vice President Cheney's energy task force had de facto members who weren't government officials, and therefore the make-up and deliberations of the task force must be publicly disclosed. If the plaintiffs are right -- that is, if the task force contained de facto members who were not government officials -- they are entitled to a broad range of documentary material. The problem is in proving that they're right, because one of the threshhold matters is determining who was on the committee both officially and de facto. In order to prove that threshhold element, the plaintiffs claim that they need a broad range of discovery that would tell them who is on the committee. In other words, to figure out whether FACA entitles them to broad discovery, they need the same broad discovery to see if FACA applies in the first place. Hence the paradox.

The Administration's position is equally curious. The Administration argues that in determining whether FACA applies, the court must begin and end its analysis with the administrative record -- primarily, the Presidential order creating the task force and the report of the task force upon the completion of its work. As a result, they argue, no further discovery is warranted. And since the administrative record does not establish that there were any de facto members, the case ought to be dismissed.

But here's the problem with the Administration's position: it means that the Administration never has to prove its affirmatve defense, since it can, in theory, preemptively manipulate the administrative record to scrub out any references to non-governmental members. It seems to me that to have any kind of meaning, the applicability of FACA ought to involve "burden-shifting" -- that is, once the plaintiffs have met the initial burden of showing some minimal basis for applying FACA, the government would have the burden of showing that FACA doesn't apply. This only makes sence since the government is the party that possesses the relevant evidence. I suspect that that was what the District Court in Cheney was trying to do, since it approved very broad discovery by the plaintiffs but invited the government to make particularized objections based on executive privilege and undue burdens in complying. That effort may have gotten lost in the procedural wrangling, however.

In any event, the drama will continue to play out in the District Court, so stay tuned...

This post was edited slightly after it was originally posted, mostly to clean up grammer and typos, but also to clarify the argument somewhat.