51 Pages Posted: 24 Dec 2007 Last revised: 13 Nov 2014
This paper asks whether the exclusion of environmentalists by the Cheney Energy Task Force can be understood in First Amendment terms as a form of belief-based discrimination. The Task Force operated secretively in the early weeks of the administration; counseled by industry but cloistered from those who would challenge the administration's production-based orthodoxy. Records released six years after the Task Force disbanded show it met with environmental groups just once - late in its tenure after priorities were established - though it met early and often with industry representatives. Privileging the ideologically compatible is a Washington tradition and (in some circumstances) an executive branch prerogative which the author describes as "executive exclusion." Yet here the exclusion of environmentalists seemed motivated by more than mere policy differences; the record suggests they were shut out because of their identity and not just ideas. The article explores that animus to ask how it should be seen within the framework of First Amendment protection for viewpoint and belief. The author finds the phenomenon does not fit neatly into a free speech analysis because the Cheney process was not a sufficiently public forum; nor a free exercise or establishment analysis because the beliefs and identity at issue cannot be understood as sufficiently analogous to religion to advance an establishment claim. Yet the Cheney Task Force raises concerns about political exclusion and identity-based discrimination inconsistent with core democratic principles. While the phenomenon appears at the edge of traditional First Amendment protection, the author concludes that it warrants further scrutiny and asks whether Congressional action to tighten the principal federal law on executive processes openness - the Federal Advisory Committee Act - offers a potential solution.
Keywords: Executive Privilege, Environmental Law, Energy Policy, First Amendment, Establishment, Free Exercise, Deliberative Democracy, Administrative Process
JEL Classification: K32
Suggested Citation: Suggested Citation
Dannenmaier, Eric, Executive Exclusion and the Cloistering of the Cheney Energy Task Force. NYU Environmental Law Journal, Vol. 16, p. 329, 2008. Available at SSRN: https://ssrn.com/abstract=1078302