Advising the President

Wall Street Journal ^ | June 25, 2004 | Editorial

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The real issue at stake in Cheney is the right of executive-branch officials to seek private advice as they see fit. The Court unfortunately chose not to take this on directly, though Justice Anthony Kennedy's majority opinion makes it clear that the majority believes courts ought to be wary of intruding on the Executive Branch. "Special considerations applicable to the president and the vice president suggest that the courts should be sensitive to requests by the government" in such cases, he writes.

Then there's the 1972 Federal Advisory Committee Act or FACA. In Cheney, a couple of activist groups alleged that the 2001 task force failed to abide by FACA's demands for public disclosure. Under FACA, presidential advisory groups that include private citizens must make their deliberations public.

Students of the Clinton years will recall that FACA came up in connection with the health-care task force led by Hillary Clinton, whom the D.C. Circuit Court of Appeals deemed the "functional equivalent" of a government employee. The First Lady's task force was divided into working groups of more than 1,000 members, nearly half of whom were private citizens -- but whose names the Administration refused to reveal. Mr. Cheney's task force, by contrast, was made up solely of high-level government officials, including six cabinet secretaries, several agency heads and other senior federal officials.

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