High court to review executive powers

WASHINGTON -- The Supreme Court yesterday assigned itself a wide-ranging review of the constitutional powers of the president and vice president, agreeing to hear two disputes over executive branch actions on domestic energy policy and foreign trade.

Accepting for review two appeals by the Bush administration, the court said it would sort out a conflict over access to records of President Bush's energy policy task force, which was headed by Vice President Dick Cheney, and a separate dispute over the administration's granting Mexican trucks access to the United States under the North American Free Trade Agreement.

Behind the details of the two cases is a campaign, largely led by Cheney, to end what the administration believes has been a steady erosion in recent years of the authority of the nation's top two elected officials.

Final decisions in the cases, expected by next summer, could affect the success of that campaign.

Cheney filed the appeal in the energy dispute, arguing that neither he nor the president should have to obey a court order to begin disclosing the contacts that private industry executives had with members of the task force who fashioned the administration's energy policy.

The main argument of Cheney's appeal is that the Constitution's separation of powers among the three branches of government means that the judicial and congressional branches lack authority to second-guess the president, the vice president, and other aides when they are deciding how to use executive powers.

The administration is making similar claims in a variety of court cases challenging the president's handling of the war on terrorism.

The broad argument so far has not worked to shield some of the internal documents of the energy task force. A federal judge and a US appeals court have ruled that courts may order at least a limited inquiry into the decision-making process that the task force used. The secrecy of the process has been challenged by Judicial Watch, a legal advocacy group, and the Sierra Club.

The administration, the lower courts have indicated, could put a stop to the demand for the records by making a claim that all of the documents are protected from release by "executive privilege," a constitutional shield for internal deliberations involving the president and his close aides.

But the new appeal argues that the president should not have to assert that privilege because the division of powers among government branches should provide enough protection. That is a more sweeping claim than past presidents have made in the face of earlier demands for executive branch files.

The NAFTA case began in lower courts as a test of the duty of the US Department of Transportation to assess the impact on the health of US citizens of exhaust fumes if trucks from Mexico are allowed full access to US highways.

But the department's appeal to the Supreme Court argues that the case poses a direct threat to the president's authority to change US policy to allow entry by those trucks, in order to satisfy the government's obligations toward Mexico under the NAFTA treaty, signed in 1992.

A federal appeals court ruling that required a full analysis of the environmental impact of allowing the trucks to operate throughout the US mainland, the government appeal says, "takes away presidential discretion" to choose the steps he believes necessary to satisfy foreign policy needs.

"No other court of appeals has similarly applied [US environmental laws] to actions of the president," the appeal argued.

Mexican trucks for years have been allowed only to cross the border and to exchange freight within a zone of about 20 miles. That has been the result of a moratorium on wider operations, dating from 1982.

After NAFTA, Mexico complained that the moratorium violated US obligations to expand trade with Mexico and an international arbitration panel set up under the trade pact agreed.

Bush then modified the moratorium a year ago, allowing the Transportation Department to register Mexican trucks to operate in the United States beyond the border zone. The groups challenging full access for Mexican trucks say that their dispute is only with the department, not the president.