De Facto Government enforcement moved out of The Courts to United States Military SUPREME COURT OF THE UNITED STATES CHENEY, VICE PRESIDENT OF THE UNITED STATES, et al.v. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA et al. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

The President established the National Energy Policy Development Group (Group) to give him advice and make recommendations on energy policy, assigning a number of federal agency heads and assistants to serve as Group members and authorizing the Vice President, as Group chairman, to include other federal officers as appropriate. After the Group issued a final report and, according to the Government, terminated all operations, respondents filed these separate actions, later consolidated in the District Court, alleging that the Group had not complied with the Federal Advisory Committee Act (FACA), which, inter alia, imposes a variety of open-meeting and disclosure requirements on entities meeting the definition of "advisory committee." As relevant here, such a committee is an entity or "subgroup … , which is … established or utilized by the President, … exclud[ing] … any committee … composed wholly of full-time, or permanent part-time, [federal] officers or employees." 5 U.S.C. App. §2(B)(i). The complaint alleged that, because nonfederal employees and private lobbyists regularly attended and fully participated in the Group's nonpublic meetings as de factoGroup members, the Group could not benefit from the §2(B) exemption and was therefore subject to FACA's requirements. The suit sought declaratory relief and an injunction requiring the defendants–including the Vice President and the Government officials serving on the Group–to produce all materials allegedly subject to FACA's requirements.

        Among its rulings, the District Court granted the defendants' motion to dismiss as to some of them, but denied it as to others. The Court held that FACA's substantive requirements could be enforced against the Vice President and the other Government participants under the Mandamus Act, 28 U.S. C. §1361, and against the agency defendants under the Administrative Procedure Act, 5 U.S.C. § 706. It deferred ruling on whether the FACA disclosure duty was sufficiently clear and nondiscretionary for mandamus to issue. It also deferred ruling on the Government's contention that to disregard the §2(B) exemption and apply FACA to the Group would violate separation-of-powers principles and interfere with the President's and Vice President's constitutional prerogatives. Instead, the court allowed respondents to conduct a "tightly-reined" discovery to ascertain the Group's structure and membership, and thus to determine whether the de factomembership doctrine applied. While acknowledging that discovery itself might raise serious constitutional questions, the court explained that the Government could assert executive privilege to protect sensitive materials from disclosure. The court noted that if, after discovery, respondents had no evidentiary support for their allegations about de factomembers in the Group, the Government could prevail on statutory grounds. Even were it appropriate to address constitutional issues, the court explained, its discovery orders would provide the factual development necessary to determine the extent of the alleged intrusion into the Executive's constitutional authority. The court then ordered respondents to submit a discovery plan, approved that plan in due course, entered orders allowing discovery to proceed, and denied the Government's motion for certification under 28 U.S. C. §1292(b) with respect to the discovery orders.

        Petitioners sought a writ of mandamus in the Court of Appeals to vacate the discovery orders and for other relief, but the court dismissed the mandamus petition on the ground that alternative avenues of relief remained available. Citing United States v.Nixon, 418 U.S. 683, the court held that petitioners, in order to guard against intrusion into the President's prerogatives, must first assert executive privilege with particularity in the District Court. If the lower court sustained the privilege, the appeals court observed, petitioners would be able to obtain all the relief they sought; but if the District Court rejected the claim, mandamus might well be appropriate. So long as the separation-of-powers conflict remained hypothetical, the court held, it had no authority to exercise the extraordinary remedy of mandamus. Although acknowledging that the scope of respondents' discovery requests was overly broad, the appeals court nonetheless agreed with the District Court that petitioners should bear the burden of invoking executive privilege and of objecting to the discovery orders with detailed precision.