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WASHINGTON — Acting at its final session of 2003, the Supreme Court on Monday set the stage for major tests next year of the limits of executive branch powers. The court granted review in two separation-of-power cases that will be argued in the spring and likely be decided by the end of the term: Cheney v. United States District Court, No. 03-475, in which Vice President Dick Cheney is resisting disclosure of documents concerning his energy policy task force, and Department of Transportation v. Public Citizen, No. 03-358, which asks whether environmental groups, in challenging regulations about Mexican trucks’ access to American roads, interfered with presidential conduct of foreign policy. “In both cases, the government is pushing presidential power very far,” said Alan Morrison of the Public Citizen Litigation Group, which is involved in both. “They’re pushing it in war, and now in peace.” Coupled with pending war-related cases — including a challenge to the government’s policies on the legal rights of Guantanamo Bay detainees in the war on terrorism — the two new cases could bring significant new doctrine on executive powers before the 2004 election. It is apt that Vice President Cheney’s name is affixed to one of the cases, since he has decried in various forums the erosion of executive power and pledged to take actions to restore it. The Cheney case is an outgrowth of a long-running battle over access to information about his energy task force, created in the early days of the Bush administration in 2001. Amid charges that the task force was dominated by energy industry interests, Judicial Watch and Sierra Club filed suit, claiming that the Federal Advisory Committee Act required disclosure of information about it. Cheney resisted, claiming that because only full-time federal employees were on the task force, FACA does not apply. But Judge Emmet Sullivan of the U.S. District Court for the District of Columbia allowed the case and discovery to proceed. Cheney appealed, but lost before a divided panel of the D.C. Circuit U.S. Court of Appeals. The Bush administration has so far stopped short of claiming that the information is protected by executive privilege. “Any construction of the FACA that would permit discovery of the vice president and other presidential advisers in such circumstances would violate fundamental principles of the separation of powers,” Solicitor General Theodore Olson argued in the government’s petition to the Supreme Court. Allowing private suits like the one filed against Cheney, Olson said, “would subject the president to intrusive and distracting discovery every time he seeks advice from his closest advisors. They would open the way for judicial supervision of internal Executive Branch deliberations.” Public Citizen, in a brief opposing Cheney’s petition, said the time had come for the high court to end Cheney’s resistance to the discovery. “Petitioners have succeeded, through premature appeals and now a writ in this court, in delaying the task force’s day of reckoning,” wrote Morrison, who says that serious jurisdictional issues remain in the case. In the Mexican trucking case, the Bush administration is fighting another effort by public interest groups to challenge an aspect of the North American Free Trade Agreement. The government agreed in NAFTA to end the embargo against Mexican trucks crossing the border into the the United States. After years of dispute over the change in policy beginning in the Clinton administration, the Transportation Department last year promulgated regulations calling for inspections of the trucks and other safety measures. Public Citizen and labor groups claimed that the regulatory process ignored legal requirements to assess the environmental impact of the new rules. A panel of the Ninth Circuit U.S. Court of Appeals agreed, finding that compliance with NAFTA “cannot come at the cost of violating United States law.” The Bush administration appealed to the high court, asserting that the environmental assessment requirement will delay and interfere with the president’s foreign policy powers. “The president of the United States must be able to act quickly and with assurance to implement the decisions that are entrusted personally to him,” wrote Olson in the government’s brief. The court also granted review Monday in a third case of importance, this one involving a high-stakes international antitrust dispute. In Hoffmann-LaRoche v. Empagran , No. 03-724, the court will decide whether foreign companies may go to U.S. courts to claim antitrust violations based on transactions occurring entirely outside the United States. The issue arises in the context of a protracted dispute between pharmaceutical companies and distributors over alleged vitamin price fixing worldwide. The D.C. Circuit said the Foreign Trade Antitrust Improvements Act does allow such claims to be brought in U.S. courts. The U.S. Chamber of Commerce filed a brief asking the high court to overturn the ruling, which, if allowed to stand, “threatens the chamber’s members with a dramatic increase of global forum shopping in the antitrust arena.” The chamber’s brief was written by Roy Englert Jr. of Robbins, Russell, Englert, Orseck & Untereiner. Tony Mauro is Supreme Court correspondent for American Lawyer Media andThe Recorder’s Washington, D.C., affiliateLegal Times. His e-mail address is [email protected].

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