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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ________________________________________ MAJ SHANNON L. MCLAUGHLIN, et al. ) ) Plaintiffs, ) ) v. ) No. 1:11-cv-11905-RGS ) LEON E. PANETTA, in his official capacity as ) Secretary of Defense; et al., ) ) Defendants. ) ________________________________________ )

PLAINTIFFS' OPPOSITION TO THE MOTION OF THE BIPARTISAN LEGAL ADVISORY GROUP OF THE U.S. HOUSE OF REPRESENTATIVES FOR LEAVE TO INTERVENE

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INTRODUCTION I.

..........................................................................................................1

NEITHER THE HOUSE, NOR BLAG, AUTHORIZED INTERVENTION.........5 A. The House Has Not Authorized Intervention As A Party Defendant.....................................................................................................5 B. BLAG Has Not Authorized Intervention In This Case..............................11 INTERVENTION IS PRECLUDED BY SEPARATION OF POWERS PRINCIPLES ........................................................................................................12 A. Intervention Is Precluded By The Take Care Clause.................................12 B. Intervention Is Precluded By Title 28, Which Implements The Take Case Clause ......................................................................................16 C. Intervention Is Precluded By The Equal Access To Justice Act ...............18 D. The Take Care Clause Is Violated By Authorizing Legislative Officers To Intervene To Enforce DOMA.................................................20 E. Intervention Would Violate The Appointments, Ineligibility And Incompatibility Clauses .............................................................................25 BLAG LACKS STANDING TO INTERVENE ...................................................27 A. Intervenors Must Have Standing ...............................................................27 B. BLAG Lacks Standing...............................................................................29 C. The Chadha Decision Does Not Support Intervention ..............................36 INTERVENTION IS PRECLUDED BY RULE 24..............................................40 A. Intervention Is Not Allowed As Of Right..................................................40 1. No Statute Authorizes Intervention ...............................................40 2. BLAG Has No Interest That Would Authorize Intervention As Of Right ...............................................................42 B. Permissive Intervention Should Be Rejected.............................................43 ........................................................................................................44

II.

III.

IV.

CONCLUSION

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TABLE OF AUTHORITIES CASES Allen v. Wright, 468 U.S. 737 (1984) ........................................................................29, 30 Ardestani v. INS, 502 U.S. 129, (1991) ...........................................................................19 Arizonans for Official English v. Arizona, 520 U.S. 43 (1997).......................................28 Barnes . Kline, 759 F.2d 21 (D.C. Cir. 1985) ........................30, 31, 34, 35, 36, 38, 41, 42 Bender v. Williamsport Area Sch. Dist., 475 U.S. 534 (1986) ..........................................5 Bond v. United States, 131 S.Ct. 2355 (2011) .....................................................23, 38, 39 Bowsher v. Synar, 478 U.S. 714 (1986) ..................................................13, 22, 23, 24, 30 Buckley v. Valeo, 424 U.S. 1 (1976), ......................................................20, 23, 25, 26, 27 Building and Constr. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275 (D.C. Cir. 1994)......................................................................................... 28 Bush v. Viterna, 740 F.2d 350 (5th Cir. 1984)) .................................................................1 Campbell v. Clinton, 52 F. Supp.2d 34 (D. D. C. 1999)..................................................34 Camreta v. Greene, 131 S.Ct. 2020 (2011) ......................................................................29 Chadha v. INS, 634 F.2d 408 (9th Cir. 1981) .................................................................36 Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) ...............................................................37 Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999) .............................................31, 32 Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989)..............................................28, 29 Citizens Awareness Network, Inc. v. United States, 391 F.3d 338..................................42 City of Colorado Springs v. Climax Molybdenum Co., 587 F.3d 1017 (10th Cir. 2009)........................................................................................28 Clinton v. City of New York, 524 U.S. 417 (1998) ..................................................31, 32 The Confiscation Cases, 74 U.S. 454 (1868) .............................................................18, 41 Costa v. Marotta, Gund, Budd & Dzerza, Inc., 281 Fed. Appx. 5 (1st Cir. 2008) .....................................................................................44 i
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Crocket v. Reagan, 720 F.2d 1355 (D.D.C. 1983) ..........................................................34 Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F. Supp. 972 (D. Mass. 1943)........................................................................................1 Daggett v. Comm. on Govtl. Ethics and Elec. Prac., 172 F.3d 104 (1st Cir. 1999) .........................................................................27 Diamond v. Charles, 476 U.S. 54 (1986) ...................................................................27, 28 Donaldson v. United States, 400 U.S. 517 (1971) ...........................................................42 FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994)................................................18 Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138 (2010) ....................................................................................................13, 21, 22, 23 Freytag v. Comm'r. of Internal Revenue, 501 U.S. 868 (1991) .................................14, 27 Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010)...........................................................3 Gojack v. United States, 384 U.S. 702 (1966) .........................................................8, 9, 12 Golinski v. OPM, 2012 WL 569685 (N.D. Cal. 2012) ......................................................3 Hein v. Freedom from Religion Found., 551 U.S. 587 (2011) ........................................30 In re Balas, 449 B.R. 567 (C.D. Cal. 2011)........................................................................3 In re Golinski, 587 F.3d 901 (9th Cir. 1999)......................................................................3 In re Levinson, 560 F.3d 1145 (9th Cir. 2009)...................................................................3 In re Levinson, 587 F.3d 925 (9th Cir. 2009).....................................................................3 Indep. Fed. Of Flight Attendants v. Zipes, 491 U.S. 754 (1989) .......................................1 INS v. Chadha, 462 U.S. 919 (1983)........................................................3, 4, 5, 36, 37, 38 INS v. Jean, 496 U.S. 154 (1990)...............................................................................18, 19 Int'l Paper Co. v. Inhabitants of Jay, Maine, 887 F.2d 338 (1st Cir. 1989)........................2 Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. ( 1974) ..................................................30

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Kilbourn v. Thompson, 103 U.S. 168 (1880) ..................................................................14 Kucinich v. Obama, 2011 WL 5005303 (D.D.C. 2011)...................................................34 Lewis v. United States, 144 F.3d 1220 (9th Cir. 1998)....................................................19 Lovett v. United States, 66 F. Supp. 142 (Ct. Cl. 1942) ..................................................37 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)......................................................29 Managual v. Rotger-Sabat, 317 F.3d 45 (1st Cir. 2003) ..................................................27 Mass. Food Ass'n v. Mass. Alcoholic Bev. Ctrl. Comm., 197 F.3d 560 (1st Cir. 1999) ..............................................................................................2 Massachusetts v. Mellon, 262 U.S. 447 (1923)..........................................................35, 36 Massachusetts v. United States Dep't of HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) ............................................................................................................3,10 Mausolf v. Babbitt, 85 F.3d 1295 (8th Cir. 1996) ...........................................................28 Monsanto Co. v. Geertsen Seed Farms, 130 S. Ct. 2743 (2010)......................................28 Moore v. House of Representatives, 733 F.2d 946 (D.C . Cir. 1984)........................34, 35 Myers v. United States, 272 U.S. 52 (1926)...............................................................12, 24 New Hampshire Right to Life PAC v. Gardner, 99 F.3ed 8 (1st Cir. 1996)...........................................................................................29, 32 Nevada Comm. on Ethics v. Carrigan, 131 S. Ct 2343 (2011) .................................33, 34 Northern Pipeline Const. Co. v. Marathon Pipeline Co., 458 U.S. 50 (1982) ............................................................................................................5 Printz v. United States, 521 U.S. 898 (1997) ......................................................12, 13, 23 Quinn v. United States, 349 U.S. 155 (1955)...................................................................13 Raines v. Byrd, 521 U.S. 811 (1997) .........................................5, 6, 27, 29, 30, 31, 38, 39 Rhode Island v. U.S. E.P.A., 378 F.3d 19 (1st Cir. 2004) .................................................2 Ruthardt v. United States, 303 F.3d 375 (1st Cir. 2002)..................................................43 Salazar v. Buono, 130 S. Ct. 1803 (2010)........................................................................15 iii
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Sea Shore Corp. v. Sullivan, 158 F.3d 51 (1st Cir. 1998)..........................................28, 29 Senate Select Comm. v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) ........................................6 South Carolina v. North Carolina, 130 S. Ct. 854 (2010) ..............................................1, 2 Springer v. Philippine Islands, 277 U.S. 189 (1928)........................................................13 Unger v. Arafat, 634 F.3d 46 (1st Cir. 2011) ............................................................41, 42 United States v. AT&T, 551 F.2d 384 (D.C. Cir. 1976) ....................................................6 United States v. Ballin, 144 U.S. 1 (1892) .....................................................................5, 6 United States v. Clintwood Elkhorn Min. Co., 553 U.S. 1 (2008).............................15, 16 United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952)...............................18 United States v. Lovett, 328 U.S. 303 (1946) ..........................................................3, 4, 37 United States v. Mass. Maritime Acad., 76 F.R.D. 595 (D. Mass. 1977) .................................................................................................................1 United States v. Munoz-Flores, 495 U.S. 385 (1990) ......................................................25 United States v. Nixon, 418 U.S. 683 (1974).............................................................13, 15 United States v. Providence Journal Co., 485 U.S. 693 (1988) ...................................................................................................................16, 17, 41 United States v. Verdugo-Urquidez, 494 U.S. 259 (1990)...............................................15 Valley Forge Christian College v. Am. United for Sep. Of Church and State, Inc., 454 U.S. 464 (1982) ............................................27, 28, 29, 30 Valley County, Idaho v. U.S. Dep't. of Ag., 2012 WL 5060000 (D. Idaho 2012) ...........................................................................28, 29 Villas at Parkside Partners v. City of Farmers Branch, 245 F.R.D. 551 (N.D. Tex. 2007).......................................................................................1 Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002)...........................................6, 33, 34 Warth v. Seldin, 422 U.S. 490 (1975) ..............................................................................30 Watkins v. United States, 354 U.S. 178 (1957) .............................................................8, 9

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Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)............................................18 Windsor v. United States, 797 F. Supp.2d 320 (S.D.N.Y. 2011)` ...................................41 STATUTES 15 U.S.C. §§7211(c)(4) & (6) .........................................................................................21 15 U.S.C. §7211(f)(1) ......................................................................................................21 28 U.S.C. § 516 ..........................................................................................................16, 40 28 U.S.C. § 517 ................................................................................................................16 28 U.S.C. § 518(a)......................................................................................................16, 17 28 U.S.C. § 519 ..........................................................................................................16, 41 28 U.S.C. § 530D(B)(ii) .....................................................................................................7 28 U.S.C. § 530D(b)(2) ................................................................................................7, 41 28 U.S.C. § 2412(d)(1)(A) .........................................................................................18, 19 MISCELLANEOUS Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731 (1980)................................................................................................14 Amicus Br. of Members of the House of Representatives, Massachusetts v. United States Dep't of HHS, Nos. 10-2204, 10-2207, 10-2214 (1st Cir. filed Nov. 3, 2011) .......................................10 Fed. R. Civ. Proc. 24(a)(1) ..............................................................................................40 Fed. R. Civ. Proc. 24(a)(2) ..............................................................................................42 House Dems question funding for GOP's defense of DOMA, The Hill March 27, 2012, available at http://thehill.com/homenews/house/218445-house-dems-questionongoing-funding-for-gops-defense-of-doma ...................................................................22 The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131 (1993).................................................................................................24 Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199 (1994)..............................................................................3, 14

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Presidential Signing Statements, 2007 WL 5964723 (2007) ...........................................15 The Potential Budgetary Impact of Recognizing Same-Sex Marriages, June 21, 2004, available at http://www.cbo.gov/publication/15740 ................................10 Spending Spree, Hotline 2012 WL 3763681 (Feb. 21, 2012)..........................................10 Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23, 2011)...................................................................................................................3 Statement on Signing the National Defense Authorization Act for Fiscal Year 2012 (Dec. 30, 2011).................................................................................3 U.S. Constitution, Art. I § 6 ............................................................................................27 U.S. Constitution, Art. II § 2 ............................................................................................26 U.S. House of Representatives Rule II.8............................................................................8 U.S. House of Representatives Rule XI, cl. 2(m)(3)(C).....................................................7 2 Jonathan Elliot, Debates on the Federal Constitution (1836)..................................13, 14 4 Dreshler's Precedents of the United States House of Representatives, Ch. 15, § 22 (1994).............................................................................................................7

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INTRODUCTION The Plaintiffs have no objection to the House of Representatives or its Members advancing arguments in support of the constitutionality of the Defense of Marriage Act ("DOMA") as amicus curiae, but they strongly oppose intervention by the House, its committees, members or agents as a party in this case. (It is unclear whether the party seeking intervention is the House as a whole, the Bipartisan Legal Advisory Group ("BLAG"), the Speaker of the House or the General Counsel of the House.) Nearly 70 years ago, Judge Wyzanski observed in rejecting a motion by the United States to intervene as a party defendant -just as the intervenor seeks to do here -- by explaining: Additional parties always take additional time. Even if they have no witnesses of their own, they are the source of additional questions, objections, briefs, arguments, motions and the like which tend to make the proceeding a Donnybrook Fair. Where he presents no new questions, a third party can contribute usually most effectively and always most expeditiously by a brief amicus curiae and not by intervention. Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F. Supp. 972, 973 (D. Mass. 1943); see also Villas at Parkside Partners v. City of Farmers Branch, 245 F.R.D. 551, 555 (N.D. Tex. 2007) (denying intervention to a would-be intervenor-defendant because it could express its views as amicus curiae); United States v. Mass. Maritime Acad., 76 F.R.D. 595, 598 (D. Mass. 1977) (Murray, J.) (same). Chief Justice Roberts has made clear this sentiment holds as true today as it did in Judge Wyzanski's time. South Carolina v. North Carolina, 130 S. Ct. 854, 875 (2010) (Roberts, C.J., concurring and dissenting in part) (quoting the last sentence of the block quote, as repeated in Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984)); see also Indep. Fed. of Flight Attendants v. Zipes, 491 U.S. 754, 779 n.8 (1989) (Marshall, J., dissenting) ("In most instances," a person who seeks to intervene to become a defendant "could adequately express their views by proceeding as amicus curiae."). "Courts often treat amicus participation

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as an alternative to intervention." South Carolina, 130 S. Ct. at 875 (Roberts, C.J., concurring and dissenting in part) (citing 7C C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1913 (2007)). That would seem appropriate here, as BLAG "seeks to intervene for a limited purpose" of "presenting the issue of the constitutionality of DOMA Section3." (Ex. 33 at 12.)1 The First Circuit specifically noted that amicus curiae status is sufficient when "the government merely wants to make its views known." Int'l Paper Co. v. Inhabitants of Jay, Maine, 887 F.2d 338, 347 (1st Cir. 1989). It even has explained that "a court is usually delighted to hear additional arguments from able amici that will help the court toward right answers," and that amici can seek additional briefing and oral argument time when they want to be heard. Mass. Food Ass'n v. Mass. Alcoholic Bev. Ctrl. Comm., 197 F.3d 560, 567 (1st Cir. 1999). Consequently, the First Circuit has found it "unsurprising" that a putative intervenor-defendant "has been unable to identify any cognizable harm that it stands to suffer at this stage of proceedings by virtue of participating as an amicus rather than as an intervenor." Rhode Island v. U.S. E.P.A., 378 F.3d 19, 28 (1st Cir. 2004). Allowing BLAG to participate as an amicus eliminates any need for BLAG to intervene as a party. Unlike an intervenor-plaintiff, BLAG (or whomever the intervenor may be) does not have any new claims of its own -- it presents no new questions. The legal questions in this case have been framed by the Plaintiffs in their Complaint -- whether DOMA and the definitional

It is unclear how BLAG views this "limited purpose." It cites authority for the proposition that a less stringent test for intervention is applied when the "movant seeks intervention for a very limited purpose rather than full participation in the litigation" (Ex. 33 at 12 (internal citation omitted), but in prior litigation in which it has intervened it has propounded burdensome discovery and taken depositions.
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statutes are constitutional -- and BLAG merely seeks to become an intervenor-defendant so that it can address those questions. The constitutional defense of DOMA is essentially a legal issue and one BLAG can adequately address by submitting briefs as an amicus curiae. In addition, the United States -- as appropriately represented in this case by the Executive Branch -- agrees DOMA is unconstitutional and will not defend this case; nevertheless it will appeal a finding of DOMA's unconstitutionality by this Court so that higher courts can consider the issue.2 Consequently, the intervenor does not need to become a party to ensure the case is appealed and it can brief issues as amicus curiae before higher courts as well. This approach of

Although the Executive Branch will not defend DOMA in the courts, it will continue to enforce DOMA administratively until its constitutionality is resolved by higher courts. Plaintiffs object that the Executive Branch would continue to enforce a law it believes is unconstitutional and that has been held unconstitutional by district courts. Golinski v. OPM, 2012 WL 569685 (N.D. Cal. Feb. 22, 2012) (White, J.) (DOMA found unconstitutional); Massachusetts v. United States Dep't of HHS, 698 F. Supp. 2d 234 (D. Mass. 2010) (Tauro, J.) (same); Gill v. OPM, 699 F. Supp. 2d 374 (D. Mass. 2010) (Tauro, J.) (same); In re Balas, 449 B.R. 567 (C.D. Cal. 2011) (same); see also In re Golinski, 587 F.3d 901 (9th Cir. 1999) (Kozinski, C.J.) (construing DOMA to avoid constitutional question); In re Levinson, 587 F.3d 925 (9th Cir. 2009) (Reinhardt, J.) (DOMA found unconstitutional); In re Levinson, 560 F.3d 1145 (9th Cir. 2009) (Reinhardt, J.) (same). U.S. Attorneys General have advised Presidents that they have no obligation to provide such provisional enforcement of unconstitutional laws. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199, 204 (1994) ["Dellinger Opinion"] ("[T]he President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day they are declared unconstitutional by the courts.") (quoting The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980) ["Civiletti Opinion"]). And "every President since Eisenhower has issued signing statements in which he stated that he would refuse to execute unconstitutional provisions." Id. at 202. That includes President Obama, who has refused to enforce statutes he believed were unconstitutional without waiting for a court to tell him so. See, e.g., Statement on Signing the Consolidated Appropriations Act, 2012 (Dec. 23, 2011) (refusing to enforce parts of the Act because they are unconstitutional); Statement on Signing the National Defense Authorization Act for Fiscal Year 2012 (Dec. 30, 2011) (same). Nevertheless, the Executive Branch's decision to enforce DOMA, even if this Court holds DOMA unconstitutional, ensures a live case of controversy will exist for Article III purposes on appeal.
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having the United States appeal when it agrees a statute is unconstitutional, so that amici can defend the statute before a higher court has been followed in the past. INS v. Chadha, 462 U.S. 919, 930-31 (1983); United States v. Lovett, 328 U.S. 303, 306-307 (1946). The difference between a Legislative Branch actor participating as amicus curiae and becoming an actual party through intervention is one of substantial constitutional significance. Neither the House nor its constituent parts has standing under Article III to become a party, and intervention by either would raise substantial separation of powers issues and violate the Take Care Clause, Appointments Clause and Emoluments Clause of the Constitution. Indeed, the putative intervenor's own lead counsel, Paul Clement, is keenly aware that this sort of judicial action by members of the Legislative Branch is unconstitutional because he argued against it in representing the Executive Branch as Deputy Attorney General. (See Br. of Vice President to Dismiss, Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002) (Ex. A); Reply Br. of Vice President in Walker (Ex. B).) Aside from these substantial constitutional issues, it does not appear that either the House or BLAG has even authorized intervention in this suit. If all that the intervenor (whoever that is) sought to do was present arguments in favor of the constitutionality of DOMA, then amicus curiae status is sufficient. Plaintiffs in this case sued the Executive Branch (not the House). The Constitution does not provide members of the Legislative or Judicial Branches with the right to intervene in a lawsuit and assume the "executive power" of defending the constitutionality of a law simply because they believe the Executive Branch is not exercising its authority appropriately. Yet, that is precisely what BLAG acknowledges it is doing, claiming that the Executive Branch "abandons, ""abdicates" and "has wholly forsaken . . . its constitutional responsibility" and that BLAG " wishes" to "accept that responsibility" on behalf of the "Legislative Branch." (Ex. 33 at 10, 19, 21.) The suggestion that

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one branch of government can "abdicate" its responsibilities and have those responsibilities "accepted" by another branch defies any notion of separation of powers. See, e.g., Northern Pipeline Const. Co. v. Marathon Pipeline Co., 458 U.S. 50, 83 (1982) ("The constitutional system of checks and balances is designed to guard against 'encroachment or aggrandizement' by Congress at the expense of the other branches of government."). The Plaintiffs have conferred with the Executive Branch -- the only branch authorized to represent the United States in this litigation -- and they should not be distracted from their service to the United States military by now being forced to defend against motions like these, discovery demands and whatever tactics members of the Legislative Branch may take at trial. I. NEITHER THE HOUSE, NOR BLAG, AUTHORIZED INTERVENTION The Court does not need to reach the constitutional issues in this case to deny intervention to the House or BLAG because, whether or not they have the constitutional authority to intervene, they have not exercised that right. A. The House Has Not Authorized Intervention As A Party Defendant

The House as a whole has not taken any vote to intervene in this suit, which is the appropriate means for the House to seek intervention. See, e.g., INS v. Chadha, 462 U.S. 919, 930 n.5 (1983) (full House voted to intervene). The Supreme Court also has indicated that collective action is essential. See, e.g., Raines v. Byrd, 521 U.S. 811, 829 (1997) (invalidating the doctrine of legislative standing, while noting the Court attached "some importance to the fact that appellees [individual members of Congress] have not been authorized to represent their respective Houses of Congress"); Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 544 (1986) ("Generally speaking, members of collegial bodies do not have standing to perfect an appeal the body itself has declined to take."); United States v. Ballin, 144 U.S. 1, 7 (1892) ("The

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two houses of Congress are legislative bodies representing larger constituencies. Power is not vested in any one individual, but in the aggregate of the members who compose the body, and its action is not the action of any separate members or numbers of members, but the action of the body as a whole."); Walker, 230 F. Supp. 2d at 68-70 & nn.13, 15, 19 (no standing absent action by House as a whole). Raines, for example, held -- even where Congress by statute authorized any member of Congress to challenge the constitutionality of a law -- no suit could take place without collective action by the entire legislative body. Raines, 521 U.S. at 829 & n.10. As BLAG's counsel recognized, Raines held: "The absence of such collective action precludes the assertion of institutional injury, even where Congress has initially authorized suits by certain individuals." (Ex. A. at 7 (emphasis in original).) BLAG's counsel told the court in Walker: "While Raines left open the question of whether Congress itself could bring suit for institutional injuries through a majority vote of its members (or the members of one chamber), it makes clear that anything short of such collective action does not satisfy Article III." (Ex. A. at 9.) Typically, before the House or Senate initiate litigation to vindicate their institutional interests, a collective vote of the whole House or Senate is taken. See, e.g., United States v. AT&T, 551 F.2d 384, 391 (D.C. Cir. 1976); Senate Select Comm. v. Nixon, 498 F.2d 725, 727 (D.C. Cir. 1974) (en banc); see also Walker, 230 F. Supp. 2d at 70 (explaining that in the preceding cases "the relevant House of Congress had also passed a resolution expressly endorsing pursuit of the lawsuit"). The issue most typically arises when the House or Senate seeks to hold someone in contempt or to enforce a legislative subpoena. As BLAG's counsel acknowledged, "[m]any congressional contempt prosecutions have foundered because they were based on the judgment of only a committee or subcommittee rather than a vote of the entire

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House or Senate," and "Congress's own practice recognizes the importance of authorization by a full house in the context of both contempt findings and subpoena enforcement." (Ex. A. at 31.) The House in particular has emphasized a strong desire to prevent judicial actions by a committee without the full authorization of the House. The House Rules provide that

"[c]ompliance with a subpoena issued by a committee or subcommittee . . . may be enforced only as authorized or directed by the House." House Rule XI, cl. 2(m)(3)(C) (2011). "When either the House or Senate receives a report of contumacious conduct from a committee, it routinely considers a resolution . . . to certify the facts to the U.S. Attorney. By reviewing this resolution, the body checks the action of the committee." 4 Dreshler's Precedents of the United States House of Representatives, Ch. 15, § 22, at 2458 (1994) (emphasis added). Although there is no statute specifically authorizing the House to intervene in any case where the Executive Branch declines to defend the constitutionality of a law, 28 U.S.C. § 530D suggests any vote to intervene must be made by the House as a whole. Section 530D requires the Attorney General to notify Congress if it declines to defend the constitutionality of a law, and do so "within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding." 28 U.S.C. § 530D(B(ii) and 530D(b)(2) (emphasis added). While Section 530D contemplates that there may be instances in which the House could intervene, Section 530D makes no mention of intervention by any committee of the House or group of House members, such as BLAG. Nor can any credible argument be made that the House has authorized BLAG to intervene to represent the House as a whole as defendant in litigation. Under the House Rules,

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the only power the House has given BLAG is to "consult" with the Speaker as to the directions he gives the General Counsel.3 The General Counsel is obligated to follow the "direction of the Speaker," not any direction from BLAG. House Rule II.8. Consequently, BLAG has not been authorized to intervene on behalf of the House or do anything more than consult.4 The Supreme Court faced a similar issue in construing the authority of a House Committee in Watkins v. United States, 354 U.S. 178 (1957), and Gojack v. United States, 384 U.S. 702 (1966). In Watkins, a defendant was held in contempt for refusal to answer questions from the House Un-American Activities Committee ("HUAC"). The Supreme Court reversed the conviction because it could not determine whether HUAC's investigation was authorized by the House as a whole. The Supreme Court explained, "[t]he more vague the committee's charter is, the greater becomes the possibility that the committee's specific actions are not in conformity with the will of the parent House of Congress." 354 U.S. at 201. The Committee's charter authorized it to investigate things that were "un-American," which the Court found so vague that it effectively allowed HUAC "to define its own authority, to choose the direction and focus of its

The only mention of BLAG in the House Rules is in House Rule II.8, which provides in full: "There is established an Office of General Counsel for the purpose of providing legal assistance and representation to the House. Legal assistance and representation shall be provided without regard to political affiliation. The Office of General Counsel shall function pursuant to the direction of the Speaker, who shall consult with a Bipartisan Legal Advisory Group, which shall include the majority and minority leaderships. The Speaker shall appoint and set the annual rate of pay for employees of the Office of General Counsel." (emphasis added).
3

Nor has BLAG or anyone else suggested any authority for the Speaker to unilaterally decide to intervene to make the House a defendant. To do so would be inconsistent with the House's decision to proceed through a vote as a whole, as in Chadha; its practice in voting as a whole in seeking a finding of contempt or to enforce a subpoena; and with Section 530D.
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activities," even if that course "is neither desired by Congress nor useful to it." Id. at 205. In addition to being concerned that HUAC did not speak for the House, the Court explained that it would be wrong to "insulate[] the House" from accountability for a rogue Committee's actions. Id. Ultimately, the Court found it "impossible" to determine whether the House had authorized HUAC's investigation and "[t]he reason no court can make this critical judgment is that the House of Representatives itself never made it." Id. at 206. As in Watkins, the House "never made" a decision to intervene in this case. BLAG, however, is on even weaker ground than HUAC in Watkins because the House clearly gave HUAC the power to take some substantive action, even if that authority was ambiguous. Here, BLAG's authority is limited to merely "consult." Moreover, the House likely envisioned that the General Counsel's day-to-day work would be addressing contracts and employment issues, and that, if it ever became appropriate for the House to intervene, such a decision would be made by the House as a whole, as it did in Chadha, and as it initiates judicial proceedings for contempt or to enforce a subpoena. In Gojack, the Supreme Court again invalidated a contempt conviction because it was not clear the House authorized the relevant questioning by a subcommittee of HUAC. The Court emphasized that "the line of authority from the House to the Committee and then to the subcommittee must plainly and explicitly appear, and it must appear in terms of a delegation with respect to a particular, specific subject matter." 384 U.S. at 716. There must be "proof of a clear delegation." Id. In this case, BLAG is unable to show that any such delegation has been made by the House to BLAG to intervene. The fact that the House as a whole has not voted to intervene in this case is fatal to any claim by BLAG that it is intervening on behalf of the House. And it is by no means clear that the

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full House would vote to continue this costly lawsuit, if given the opportunity to vote. The Minority Leader and Minority Whip voted against funding any involvement by the House in DOMA litigation as part of BLAG's partisan 3-2 vote, and 133 Democratic House members filed an amicus curiae brief with the First Circuit arguing that DOMA is unconstitutional. Amicus Br. of Members of the House of Representatives, Massachusetts v. United States Dep't of HHS, Nos. 10-2204, 10-2207, 10-2214 (1st Cir. filed Nov. 3, 2011). Nor is it clear that support would exist among Republicans in the House to support this litigation, even if they did support DOMA (and not all Republicans do). In this campaign season, the test that is in vogue among Republicans for whether to approve spending appears to be: Is the spending "so critical that it makes sense to borrow money from China to pay for it?" Spending Spree, Hotline (Feb. 21, 2012) (2012 WL 3763681) (statement of Mitt Romney). It would seem hypocritical for House members who are concerned with government spending, who are troubled by China's civil rights record and who see China as a potential threat to the United States to deem it worth borrowing from China to fund litigation that would discriminate against and penalize American soldiers. See also U.S. Congressional Budget Office, The Potential Budgetary Impact of Recognizing Same-Sex Marriages, June 21, 2004, available at http://www.cbo.gov/publication/15740 (finding federal recognition of same-sex marriages would increase federal revenues due to various marriage penalties in the tax law and entitlement programs, and those revenues would exceed the cost of government-paid spousal benefits). In a campaign season, candidates are typically quick to say they support the troops, rather than encourage discrimination against them. But the Court should not have to guess at what the House would do if allowed to vote. If intervention is the direction the Speaker wants the House to take, he should call for a full vote by House members.

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B.

BLAG Has Not Authorized Intervention In This Case

The very day BLAG moved to intervene, Democratic Leader and BLAG Member Nancy Pelosi issued a statement condemning the filing of this motion to intervene, explaining that it is being made "[w]ithout a vote or any specific authorization of the Bipartisan Legal Advisory Group (BLAG)." (Ex. C.) To support its right to intervene, BLAG cites a vote taken by BLAG on March 9, 2011 -- more than seven months before this case was even filed -- and, rather than citing BLAG's decision, it merely cites a press release from the Speaker. (Dkt. 12 at 4; Dkt. 33 at 12.) Remarkably, the only publicly available report on what BLAG voted on is a photograph of a motion entitled "Authority to Intervene of File Amicus" that was posted on Democratic Leader Pelosi's Twitter account. (Ex. D.) The motion was for BLAG to recommend that the Speaker direct the General Counsel to: (i) take such steps as he considers appropriate, including intervention or submission of briefs amicus curiae, to protect the interests of the House in litigation in which the Attorney General has ceased to defend the constitutionality of section 3 of the Defense of Marriage Act. (Ex. D (emphasis added).) BLAG's March 9, 2011 decision followed the Attorney General's February 23, 2011 report to Congress that the United States would no longer defend the already existing Windsor and Pederson cases. (Dkt. 29-1.) In referring to the "litigation in which the Attorney General has ceased to defend the constitutionality" of DOMA, BLAG's recommendation was referring to those cases -- not this case, which BLAG could not envision would be filed months later. By its own terms, the BLAG recommendation's use of the words "has ceased" applies the recommendation only to those cases that had been filed as of the date of that decision. In addition, the BLAG decision speaks only to the defense of DOMA, rather than to the defense of Title 38 that BLAG also seeks to defend here. (Dkt. 32 at 1.)

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BLAG's recommendation also was just a recommendation, not an order, and its recommendation was not that intervention is the only appropriate course. The BLAG

recommendation merely included intervention "or" filing an amicus brief as among the steps that the General Counsel could deem "appropriate." In other words, BLAG is not seeking

intervention because the House voted to intervene or because BLAG voted to intervene, but merely because the General Counsel of the House chose to intervene in BLAG's name, while calling itself the "House." (Ex. 32 at 1.) BLAG's theory appears to be that we can be sure the House authorized intervention in this case because the House Rules authorize BLAG to "consult" with the Speaker and, seven months before it was even aware of this suit, BLAG voted 3-2 to "recommend" that the Speaker "direct" the General Counsel to essentially do whatever he wanted in cases other than this one. That is hardly the "proof of a clear delegation" the Supreme Court requires. Gojack, 384 U.S. at 1698. II. INTERVENTION PRINCIPLES A. IS PRECLUDED BY SEPARATION OF POWERS

Intervention Is Precluded By The Take Care Clause

BLAG claims that "ordinarily it is the duty of the Executive Branch to 'take Care that the Laws be faithfully executed,' U.S. Const. art. II, § 3, and of the Department of Justice in particular, in furtherance of that responsibility, to defend the constitutionality of duly enacted federal laws when they are challenged in court." (Dkt. 33 at 10 (emphasis added); see also Dkt. 12 at 2 ("As the Court is aware, it is the duty of the Executive Branch to 'take Care that the Laws be faithfully executed,' U.S. Const. art. II, § 3, and in furtherance of that responsibility, the Department ordinarily defends the constitutionality of duly enacted federal laws when they are challenged in court.") (emphasis added).) This is not just how the Constitution "ordinarily" works, it is the only way the Constitution works. "The Constitution does not leave to speculation

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who is to administer the laws enacted by Congress; the President, it says, 'shall take Care that the Laws be faithfully executed.'" Printz v. United States, 521 U.S. 898, 922 (1997) (quoting U.S. Const., Art. II, § 3). When it comes to the President, "[i]t is his responsibility to take care that the laws be faithfully executed." Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138, 3152 (2010) (emphasis in original). The Supreme Court could not be clearer in declaring that the Constitution vests "executive power in the President alone," and that is "in order to secure that unitary and uniform execution of the laws which article 2 of the Constitution evidently contemplated." Myers v. United States, 272 U.S. 52, 135 (1926) (emphasis added). The Constitution distinguishes the "Legislative Branch" from a "separate and wholly independent Executive Branch." Bowsher v. Synar, 478 U.S. 714, 722 (1986) (emphasis added). The executive power of the Executive Branch cannot be "shared" with Congress, as that "would be contrary to the basic concept of separation of powers and the checks and balances that flow from the scheme of tripartite government." United States v. Nixon, 418 U.S. 683, 704 (1974). The Supreme Court was just as explicit in declaring that the "Legislative power, as distinguished from the executive power, is the authority to make laws, but not to enforce them or appoint agents charged with the duty of such enforcement. The latter are executive functions." Springer v. Philippine Islands, 277 U.S. 189, 202 (1928). Likewise, it has cautioned of the need to remain mindful that Congress' "power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary." Quinn v. United States, 349 U.S. 155, 161 (1955). The President's obligation not to enforce a statute he believes is unconstitutional provides an important check on Congress' power, and ensures this country's highest law -- the Constitution -- is executed. This was the Framers' design. In the ratification debates, James Wilson explained

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that if Congress enacted an unconstitutional law, it is the "duty [of judges] to pronounce it void. . . . In the same manner, the President of the United States could shield himself, and refuse to carry into effect an act that violates the Constitution." 2 Jonathan Elliot, Debates on the Federal Constitution at 445-46 (1836) (statement of December 1, 1787) (emphasis in original). The Framers viewed the legislature as the "principal threat"5 to the system of checks and balances they created, and recognized that it was not enough simply to repose the power to execute the laws (or to appoint) in the President; it was also necessary to provide him with the means to resist legislative encroachment upon that power. The means selected were various, including a separate political constituency, to which he alone was responsible, and the power to veto encroaching laws, see Art. I., § 7, or even to disregard them when they are unconstitutional. Freytag v. C.I.R., 501 U.S. 868, 906 (1991) (Scalia, J., dissenting) (emphasis added). Presidents have been advised that enforcing a law the President believed was unconstitutional "would constitute an abdication of the responsibility of the executive branch, as an equal and coordinate branch of government with the legislative branch, to preserve the integrity of its functions against constitutional encroachment." Dellinger Opinion 18 Op. O.L.C. at 203 (quoting Civiletti Opinion, 4A Op. O.L.C. 55 at 59); see Appropriations Limitation for Rules Vetoed by Congress, 4B Op. O.L.C. 731, 734 (1980) (enforcing an unconstitutional law "would impair the Executive's constitutional role and would constitute an abdication of the

In particular, the Supreme Court has recognized that the House of Representatives poses the most serious threat to the separation of powers, and emphasized "that the exercise of power by this body, when acting separately from and independent of all other depositories of power, should be watched with vigilance, and when called in question before any tribunal having the right to pass upon it that it should receive the most careful scrutiny." Kilbourn v. Thompson, 103 U.S. 168, 192 (1880).
5

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responsibility of the Executive Branch"). In circumstances like these, where the President has concluded that a statute is unconstitutional, [a] President that places the statutory law over the constitutional law . . . would fail in his duty faithfully to execute the laws. The principle is equally sound where the Supreme Court has yet to rule on an issue, but the President has determined that a statutory law violates the Constitution. To say that the principle is not equally sound in this context is to deny the President's independent responsibility to interpret and uphold the Constitution. It is to leave the defense of the Constitution only to two, not three, of the branches of government. Deputy Assistant Attorney General Elwood, Presidential Signing Statements, 2007 WL 5964723, at 5 (2007) ["Elwood Opinion"]; see Salazar v. Buono, 130 S. Ct. 1803, 1817 (2010) ("Congress, the Executive, and the Judiciary all have a duty to support and defend the Constitution."); United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) ("The Members of the Executive and Legislative Branches are sworn to uphold the Constitution, and they presumably desire to follow its commands."); Nixon, 418 U.S. at 703 ("In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others."). Nor is there anything improper in the President declining to defend an unconstitutional law. "[T]he law the President must execute includes the Constitution -- the supreme law of the land. Because the Constitution is supreme over all other law, the President must resolve any conflict between statutory law and the Constitution in favor of the Constitution, just as courts must." Elwood Opinion, 2007 WL 5964723, at 4. BLAG's own counsel has recognized that it is appropriate for the Executive Branch to refuse to enforce unconstitutional laws (not the "abandonment," "abdication" or "forsaking" of his constitutional responsibilities, BLAG now claims), and that "the Executive Branch can, and does, decline to enforce statutes that it concludes are clearly unconstitutional." Reply Br. of Solicitor General Clement at 11, United

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States v. Clintwood Elkhorn Min. Co., 553 U.S. 1 (2008) (citing Dellinger Opinion 18 Op. O.L.C. at 204 (1994)). B. Intervention Is Precluded By Title 28, Which Implements The Take Care Clause

There are at least three provisions of Title 28 that authorize the Executive Branch alone to represent the United States in litigation: (1) 28 U.S.C. § 516 provides that "the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested, and securing evidence therefore, is reserved to officers of the Department of Justice, under the direction of the Attorney General;" (2) 28 U.S.C. § 519 provides that "the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party, and shall direct all United States attorneys, assistant United States attorneys, and special attorneys appointed under section 543 of this title in the discharge of their respective duties;" and (3) 28 U.S.C. § 517 provides that "[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States." There is no statutory provision authorizing the House of Representatives (or any of its component parts) to represent the United States' interests in litigation. In United States v. Providence Journal Co., 485 U.S. 693 (1988), the Supreme Court found it a "somewhat startling" proposition to even suggest that anyone other than the Executive Branch could represent the interests of the United States in litigation. Id. at 701. In that case, a federal district court appointed a Special Prosecutor to prosecute a contempt motion. Ultimately, the Special Prosecutor petitioned the Supreme Court for certiorari, but the Supreme Court held

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that the Special Prosecutor had no power to represent the United States. Like the Title 28 statutes addressed above, a unique statute applicable only to practice before the Supreme Court provides: "Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court . . . in which the United States is interested." 28 U.S.C. § 518(a). Because the petition for certiorari was filed by the Special Prosecutor alone, rather than the Attorney General or Solicitor General, the Supreme Court dismissed the case for lack of jurisdiction. 485 U.S. at 697.6 The Supreme Court had no trouble finding: "The present case clearly is one 'in which the United States is interested.' The action was initiated in vindication of the 'judicial power of the United States,' and it is that interest, unique to the sovereign, that continues now to be litigated in this Court." Id. at 700 (emphasis in original). The Special Prosecutor argued that he "acted in support of the power of the Judicial Branch, rather than in furtherance of the Executive's constitutional responsibility, U.S. Const., Art. II § 3, to 'take Care that the Laws be faithfully executed.'" Id. at 701. The Supreme Court emphatically rejected this proposition: This suggested interpretation of § 518(a). . . presumes that there is more than one "United States" that may appear before this Court, and that the United States is something other than "the sovereign composed of the three branches. . . ." We find such a proposition somewhat startling, particularly when supported by the office whose authority would be substantially diminished by its adoption, and we reject that construction as inconsistent with the plain meaning of § 518(a). It seems to be elementary that even when exercising distinct and jealously separated powers, the three branches are but "'co-ordinate parts of one government." Id. (internal citations omitted).

An exception to Title 28 that exists in Federal Rule of Criminal Procedure 42 allowed the district court to appoint the Special Prosecutor to initiate the case, but Rule 42 did not authorize the petition for certiorari. 485 U.S. at 696-97.
6

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The situation is not different here. The United States is "interested" in this suit, as the United States, its agencies and officers are party defendants. In fact, the Executive Branch entered an appearance in this case on behalf of the United States. The BLAG vote that the General Counsel relies upon to bring this suit merely recommended to the Speaker that he direct the General Counsel to take appropriate steps "to protect the interest of the House" in the previously filed challenges to DOMA. (Ex. D.) But "the interest of the House" here is no different from the "support of the Judicial Branch" the Special Prosecutor sought to vindicate in Providence Journal. There, as here, it is an interest "unique to the sovereign" and there is only one sovereign -- the United States, which is represented by the Executive Branch alone. See also FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) (reaffirming Providence Journal by holding that the FEC cannot seek certiorari on its own);7 The Confiscation Cases, 74 U.S. 454, 458-59 (1868) ("[I]t is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney General."). C. Intervention Is Precluded By The Equal Access To Justice Act

The Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, authorizes courts to order the United States to pay attorneys' fees for prevailing parties when the United States' legal

BLAG makes much of the fact it has intervened in many cases where the constitutional arguments raised here were not raised and where consent was given in most cases. (Dkt. 12 at 34; Dkt. 33 at 5-6 & nn.4-5.) In NRA Political Victory Fund, the FEC made the same argument -that it had represented itself before the Supreme Court on numerous prior occasions without objection. The Supreme Court rejected that argument because jurisdiction "was challenged in none of those actions, and therefore the question is an open one before us." 513 U.S. at 97; see also Will v. Michigan Dept. of State Police, 491 U.S. 58, 63 n.4 (1989) (courts are not bound by prior sub silentio holdings "when a subsequent case finally brings the jurisdictional issue" before them); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (same).
7

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position is not "substantially justified." (28 U.S.C. § 2412(d)(1)(A); see also Compl. ¶ 5 (noting Plaintiffs' intent to seek attorneys' fees under the EAJA).) The EAJA is designed to prevent the "unreasonable exercise of government authority" by encouraging plaintiffs to vindicate their rights without having to fear being out spent by the government in litigation. Ardestani v. INS, 502 U.S. 129, 138 (1991); INS v. Jean, 496 U.S. 154, 163-64 (1990). In other words, Congress acknowledged that sometimes the proper course is for the United States to accept defeat in litigation, particularly when the United States has violated the constitutional rights of its citizens. This fee-shifting mechanism discourages the "United States" from "run[ning] up" the plaintiffs' legal bills by taking unjustified legal positions. Lewis v. United States, 144 F.3d 1220, 1223 (9th Cir. 1998). If the House (or some component of the House) were permitted to intervene to represent the United States in this case, it would distort the remedial scheme designed by Congress in the EAJA. Congress created liability for the United States when it takes litigating positions that are not "substantially justified," trusting that the Department of Justice -- the expert agency in defending the United States in court -- would avoid liability by not taking unfounded legal positions. Surely, Congress never contemplated that if the Executive Branch found a legal position -- like the defense of DOMA -- unjustified, some other government body or member of the Legislative or Judicial Branch would be allowed to intervene to make the very argument the Executive Branch recognizes is not "substantially justified." That would allow government bodies who are inexpert in defending the United States' interests in court to run up the liabilities of the United States under the EAJA, even when their motivation may relate more to scoring political points than the soundness of the law. Even if the Court were to find that substantially unjustified actions by a governmental intervenor did not create liability under the EAJA, the

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purpose of the EAJA would still be undermined because persons whose rights were violated would then incur the very expense of defending against substantially unjustified legal positions that the EAJA sought to prevent. D. The Take Care Clause Is Violated By Authorizing Legislative Officers To Intervene To Enforce DOMA

Aside from whether the House did in some convoluted manner authorize the General Counsel to intervene in this case on behalf of BLAG or the House, the Supreme Court has held that even enacted legislation that clearly authorized legislative officers to defend the interests of the United States is unconstitutional. Although Buckley v. Valeo, 424 U.S. 1 (1976), is best remembered as the seminal case concerning the application of the First Amendment to campaign spending, the relevant holding from that case here (and one all the Justices agreed on) was that the FEC was unconstitutionally constituted by the Federal Election Campaign Act of 1971. Two members of the FEC were "to be appointed by the Speaker of the House . . . upon the recommendations of its respective majority and minority leaders" -- just as the Speaker has appointed the General Counsel of the House with the consultation of BLAG. 424 U.S. at 113. The FEC was authorized "to initiate (through civil proceedings for injunctive, declaratory, or other appropriate relief), defend, or appeal any civil action in the name of the Commission for the purposes of enforcing the provisions of this Act, through its general counsel." Id. at 166 (quoting 2 U.S.C. § 437d(a)(6)) (emphasis added). The Supreme Court found many constitutional problems with this arrangement. The FEC was given powers of "an investigative and informative nature," which was fine because they fell into "the same general category as those powers which Congress might delegate to its own committees." Id. at 137. A different result was required with regard to the FEC's "more substantial powers . . . exemplified by its discretionary power to seek judicial relief." Id. at 138.

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The Supreme Court held that authority "cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed.'" Id. at 139. The Supreme Court recently reaffirmed this aspect of Buckley in Free Enterprise Fund v. Pub. Co. Acct. Oversight Bd., 130 S. Ct. 3138 (2010) -- another case in which the law firm representing BLAG argued that Congress overstepped its constitutional authority. The SarbanesOxley Act created a Public Company Accounting Oversight Board, with its members appointed by the Securities Exchange Commission. The Board was empowered to "enforce the compliance with this Act," including "impos[ing] appropriate sanctions," 15 U.S.C. §§ 7211(c)(4) & (6), and could "sue and be sued, complain and defend, in its own corporate name and through its own counsel, with the approval of the Commission, in any Federal, State or other court," id. § 7211(f)(1) (emphasis added). Acknowledging that these responsibilities made Board members "Officers of the United States," subject to the Appointments Clause in accordance with Buckley, the Petitioners sought a declaratory judgment that the Board is unconstitutional and an injunction preventing the Board from exercising its powers. 130 S. Ct. at 3149. The Supreme Court invalidated the Board because "[t]he Constitution provides that '[t]he executive Power shall be vested in the President of the United States of America,' Art. II, § 1, cl. 1" and "[i]t is his responsibility to take care that the laws be faithfully executed." 130 S. Ct. at 3151-52 (emphasis in original). The President did not have the authority to appoint or remove Board members, only the Commission did -- and even then only for cause -- and the President lacked direct control over the Commissioners. Id. at 3153-54. The Supreme Court held: This arrangement is contrary to Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's

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failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He is not the one who decides whether Board members are abusing their offices or neglecting their duties. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. This violates the basic principle that the President "cannot delegate ultimate responsibility of the active obligation to supervise that goes with it, because Article II makes a single President responsible for the actions of the Executive Branch." Id. at 3154 (emphasis in original; internal citations omitted). Allowing the General Counsel of the House to seek intervention at the request of the Speaker, or BLAG, or the House as a whole, to defend DOMA is fundamentally more dangerous than the situation in Free Enterprise Fund. While the majority and the dissent disagreed as to whether the President's control over the Board members was sufficient in Free Enterprise Fund, there can be no question that the President has no authority whatsoever over the General Counsel of the House. Moreover, the General Counsel is directly challenging the authority of the

President, arguing that because the President is not taking care to execute the law as the General Counsel (or the Speaker, or perhaps BLAG or the House) would like, it falls to the General Counsel of the House to step into the President's shoes and "accept that responsibility." (Ex. 33 at 21; see Debbie Siegelbaum, House Dems Question Funding for GOP's Defense of DOMA, The Hill (March 27, 2012) (quoting Rep. Steven LaTourette (R-Ohio) as saying: "The House or Representatives, one not normally charged with doing the [DOJ's] job for it, is doing precisely that; defending the statute in the courts.") (emphasis added). This is a flagrant encroachment on the power of the Executive Branch at the hands of the Legislative Branch. The House has no authority to do the President's job for him when it disagrees with how he executes his duties. Allowing the House to assume the role of the Executive Branch in defending DOMA as a party would undermine the separation of powers principles that animate Buckley, Free Enterprise Fund and much of the Supreme Court's jurisprudence. "[T]he debates of the Constitutional

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Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches." Bowsher, 478 U.S. at 727 (quoting Buckley, 424 U.S. at 129). The Framers relied on "Montesquieu's well-known maxim that the legislative, executive and judicial departments ought to be separate and distinct: . . . . 'When the legislative and executive powers are united in the same person or body,' says he, 'there can be no liberty. . . .'" Buckley, 424 U.S. 120 (quoting Federalist No. 47 (Madison)). The Framers supplied constitutional actors, like the House and the President, "opposite and rival interests" because their "constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights." Buckley, 424 U.S. at 122-23 (quoting, Federalist No. 51 (James Madison)). In doing so, the Framers understood that divided government would not be efficient, and that does not trouble the Supreme Court because "[c]onvenience and efficiency are not the primary objectives -- or the hallmarks -- of democratic government." Free Enter. Fund, 130 S. Ct. at 3156 (quoting Bowsher, 478 U.S. at 736).8 In Printz v. United States, 52 U.S. 898 (1997), the Supreme Court addressed the Take Care Clause and explained that "[t]he insistence of the Framers upon unity in the Federal Executive -- to ensure both vigor and accountability -- is well known. That unity would be shattered, and the power of the President would be subject to reduction, if Congress could act as

The Supreme Court has made clear that individuals may seek to vindicate the separation of powers when the violation of those principles threatens their interests. Bond v. United States, 131 S. Ct. 2355, 2365 (2011). Moreover, those interests are enforceable even if "the encroachedupon branch approves of the encroachment." Free Enter. Fund, 130 S. Ct. 3138, 3155 (2010) (quoting New York v. United States, 505 U.S. 144, 182 (1992)).
8

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effectively without the President as with him, simply by requiring [others] to execute its laws." Id. at 922. (internal citations omitted). That is essentially the case here. The President has reconciled DOMA and the Constitution in enforcing the law in a way that the House (or some sub-part of the House) does not like, and the House (or that sub-part of the House) has taken it upon itself to send the General Counsel of the House into court to defend the law and challenge the President's enforcement of the law. The Constitution does not permit this. Moreover, the implications are far broader than BLAG may suggest. Apart from

questions of constitutionality, questions inevitably arise as to how a statute should be construed and the House and the President may disagree. Of course, "interpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law," and that responsibility falls to the President. Bowsher, 478 U.S. at 733; see Myers, 272 U.S. at 135 (President has power to "supervise and guide" the "construction of the statutes"). Sometimes, Presidents may construe a statute to avoid a constitutional problem. The Legal Significance of Presidential Signing Statements, 17 Op. O.L.C. 131, 132 (1993) (noting Presidents frequently construe a statute, "often to save the statute from unconstitutionality"). Just as BLAG may disagree with the President's finding that DOMA and the Constitution are irreconcilable, BLAG may also disagree with how the President construes other statutes to save them from a finding of unconstitutionality or BLAG may simply disagree with the President's statutory interpretation. But the mere fact that some component of Congress may believe that the President has misunderstood the law that it passed, or has distorted its intent through a misguided attempt to save a statute from being held unconstitutional, should not give it the right to intervene as a party to challenge how the President has chosen to enforce the law. To be sure, there is no impediment to Congress or its constituencies making their views known to the courts, who have the final

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word as to what the statute means, as an amicus curiae, but they are not empowered to assume the role of a party because the United States as a whole is represented by the Executive Branch. The Framers plainly contemplated that there would be disagreements among the three Branches of government, which by design compete with one another, but they never contemplated that the House could usurp the President's powers if it found him derelict in exercising them or that it would fall to the Judicial Branch to referee such fights between the political branches. To the contrary, the Framers gave the House its own constitutional means for protecting itself, including the most powerful weapon of all -- the power of the purse. The Supreme Court has relied upon James Madison's observation that "[t]his power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure." United States v. Munoz-Flores, 495 U.S. 385, 395 (1990) (quoting Federalist No. 58 (James Madison)). Like the legislative veto addressed in Chadha, perhaps giving the authority to the House to intervene to execute those laws that the President does not defend would be "a useful 'political invention'" but, just as the Supreme Court declined to tamper with the Constitution by affording the House extraconstitutional remedies in Chadha, this Court should do the same here. Chadha, 462 U.S. at 945. E. Intervention Would Violate The Appointments, Ineligibility And Incompatibility Clauses

In addition to violating the Take Care Clause, allowing the House or its members or officers to intervene to defend DOMA would violate several constitutional provisions relating to the appointment and ability of certain persons to assume Executive functions. The resolution relied upon by BLAG purportedly authorized the General Counsel of the House to intervene in this case, but the General Counsel is a legislative officer and "the legislature cannot ingraft

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executive duties upon a legislative office, since that would usurp the power of appointment . . . ." Buckley, 424 U.S. at 139 (quoting Springer, 277 U.S. at 202). Rather, to assume an executive power -- such as litigating the defense of a statute -- the person must be appointed pursuant to the Appointments Clause.9 When such litigation responsibilities were given to Commissioners of the FEC who had not been appointed in compliance with the Appointments Clause, the Supreme Court held that delegation of powers unconstitutional in Buckley, 424 U.S. at 140 (invalidating the provisions because "vesting in the Commission primary responsibility for conducting civil litigation in the courts of the United States for vindicating public rights, violate Art. II, cl. 2, of the Constitution") (Appointments Clause). As the Supreme Court explained in Buckley: If the Legislature wishes the Commission to exercise all of the conferred powers, then its members are in fact "Officers of the United States" and must be appointed under the Appointments Clause. But if Congress insists upon retaining the power to appoint, then the members of the Commission may not discharge those many functions of the Commission which can be performed only by "Officers of the United States," as that term must be construed within the doctrine of separation of powers. 424 U.S. at 118-19. In addition, neither the Speaker nor any group of Congressmen can initiate or direct the intervention to enforce DOMA. The Ineligibility and Incompatibility Clauses provide: "No

The Appointments Clause provides: The President "shall nominate, and, by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const., Art. II, § 2, cl. 2. Buckley held that "neither Congress nor its officers were included within the language 'Heads of Departments," and neither "the Speaker of the House, nor the President pro tempore of the Senate comes within this language." 424 U.S. at 127. Consequently, neither the Speaker nor Congress as a whole can be vested with the power to select Officers of the United States.
9

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Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, . . . and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office." U.S. Const., Art. I, § 6, cl. 2; see also Buckley, 424 U.S. at 684-85 (the clauses help maintain "the separation of powers"); Freytag, 501 U.S. at 904-5 (Scalia, J., dissenting). Because there must be separation between the Members of Congress who enact the law and those who enforce the law, neither the Speaker nor any other Member of Congress can intervene to defend the law as a party. III. BLAG LACKS STANDING TO INTERVENE A. Intervenors Must Have Standing

Aside from the constitutional separation of powers obstacles to BLAG's intervention, it is clear that BLAG lacks standing to intervene because the only basis for its claim of standing is the legislative standing doctrine that was overruled by the Supreme Court in Raines v. Byrd, 521 U.S. 811 (1997). As the First Circuit has recognized, however, there is a circuit split -- which remains unresolved in this Circuit -- as to whether an intervenor must independently have standing or can simply piggy-back on a live case or controversy between other parties. Mangual v. Rotger-Sabat, 317 F.3d 45, 61 & n.5 (1st Cir. 2003) (discussing the split); Daggett v. Comm'n on Govtl. Ethics & Elec. Prac., 172 F.3d 104, 109 (1st Cir. 1999) (same); see also Diamond v. Charles, 476 U.S. 54, 68- 69 n.21 (1986) (leaving issue open). Although the Supreme Court has noted that it remains an open issue whether an intervenor must have standing where an Article III case or controversy is present among existing parties, the Supreme Court has suggested that standing is required of all parties. While the contours of standing are not always clear, the Supreme Court has explained that "of one thing we

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may be sure: Those who do not possess Art. III standing may not litigate as suitors in the courts of the United States." Valley Forge Christian Coll. v. Am. United for Sep. of Church and State, Inc., 454 U.S. 464, 475-76 (1982). Because an intervenor seeks to become a suitor -- a litigant on par with the existing parties -- this standing requirement would appear equally applicable to it. See, e.g., Mausolf v. Babbitt, 85 F.3d 1295, 1300 (8th Cir. 1996); Building and Constr. Trades Dept., AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994). The Supreme Court also has been clear that if no party with standing has appealed, no case or controversy remains unless the intervenor taking the appeal independently has standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64-65 (1997); Diamond, 476 U.S. at 68; see also Sea Shore Corp. v. Sullivan, 158 F.3d 51, 55 (1st Cir. 1998) (dismissing appeal brought solely by an intervenor-defendant because it lacked standing). Applying that principle, even courts that permit intervenors to piggy-back on the standing of others require the intervenor to have standing to pursue any claim not made by a party with standing. See, e.g., City of Colorado Springs v. Climax Molybdenum Co., 587 F.3d 1071, 1079 (10th Cir. 2009) ("Where a proposed intervenor has been permitted to intervene on the basis of an existing party's standing to assert the claim at issue, the Court has described the situation as 'piggyback' standing."). That makes sense because the party invoking federal jurisdiction "must demonstrate standing separately for each form of relief sought." Monsanto Co. v. Geertsen Seed Farms, 130 S. Ct. 2743, 2754 (2010). Consequently, where a party with standing has not made a claim, there is no claim for an intervenor without standing to piggy-back upon. Plaintiffs maintain that intervention by BLAG is prohibited outright due to its lack of standing and, even if not, that BLAG may litigate issues (discovery or other matters) that no party with standing will raise. In addition, standing is relevant because even those courts that do

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not believe an intervenor must independently have standing for Article III purposes do consider the standing interest in the context of the interest required for intervention under Rule 24. See, e.g., Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989); Valley County, Idaho v. U.S. Dep't of Ag., 2012 WL 506000, at *4 (D. Idaho Feb. 15, 2012). B. BLAG Lacks Standing

To establish standing, an intervenor-defendant "must demonstrate: (1) an 'injury-in-fact'; (2) that is 'fairly traceable' to the proceeding . . .; and (3) is 'likely' to be 'redressed by a favorable decision.'" Sea Shore Corp., 158 F.3d at 55; see Camreta v. Greene, 131 S. Ct. 2020, 2028 (2011) ("And the opposing party also must have an ongoing interest in the dispute, so that the case features 'that concrete adverseness which sharpens the presentation of issues.'") (internal citation omitted). In assessing whether there is an injury in fact, the Supreme Court will "demand that litigants demonstrate a 'personal stake' in the suit," Camreta, 131 S. Ct. at 2028, and that "the alleged injury suffered is particularized as to him," Raines, 521 U.S. at 819. In other words, a "personal injury" must be alleged. Allen v. Wright, 468 U.S. 737, 751 (1984).10 This requirement exists because "[n]ot every dispute is a case or controversy. 'The presence of a disagreement, however sharp or acrimonious it may be, is insufficient by itself to meet Art. III's requirements.'" New Hampshire Right to Life PAC v. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (quoting Diamond, 476 U.S. at 62). "[S]tanding is not measured by the intensity of

Standing is necessary to preserve the separation of powers, including preventing the courts from interfering with the Executive Branch's authority: "To permit Congress to convert the undifferentiated public interest in executive officers' compliance with the law into an 'individual right' vindicable in the courts is to permit Congress to transfer from the President to the courts the Chief Executive's most important constitutional duty, to 'take Care that the Laws be faithfully executed.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992).
10

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the litigant's interest or the fervor of his advocacy." Valley Forge Christian Coll., 454 U.S. at 465. "[F]ederal courts are not empowered to seek out" and decide constitutional questions, "[r]ather, federal courts sit 'solely, to decide on the rights of individuals.'" Hein v. Freedom From Religion Found., 551 U.S. 587, 598 (2011) (quoting Marbury v. Madison, 1 Cranch 137, 170 (1803)); see Allen, 468 U.S. at 754 ("This Court has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer standing on a federal court."). "The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally." Warth v. Seldin, 422 U.S. 490, 499 (1975). There once was a doctrine of legislative standing that permitted the Houses of Congress, their individual Members and even BLAG to seek judicial relief whenever Executive Branch activity caused a diminution in the power of the Legislative Branch, but that line of cases was overruled by Raines v. Byrd, 521 U.S. 811 (1997). The legislative standing doctrine did not emerge until the D.C. Circuit gave it life in 1974, in Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.), and, as BLAG notes, the doctrine was used to permit BLAG to intervene. (Dkt. 12 at 3 n.3 & Dkt. 33 at 14 (citing, inter alia, Moore v. House of Representatives, 733 F.2d 946 (D.C. Cir. 1984) (Members of Congress had standing to sue the House and Senate claiming an act unconstitutionally originated in the Senate); Barnes v. Kline, 759 F.2d 21, 23 n.3 (D.C. Cir. 1985) (BLAG intervened without opposition), overruled, Raines, 521 U.S. at 820 n.4.)11

Bowsher noted that the district court permitted Members of Congress to sue under "the so-called 'congressional standing' doctrine" of Moore, but declined to decide the validity of that standing doctrine because other plaintiffs did have standing. 478 U.S. at 719, 721.
11

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In Raines, the Supreme Court held that its standing analysis is more stringent in the separation of powers contexts than in others. The Court explained that its "standing inquiry has been especially rigorous when reaching the merits of the dispute would force us to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional." 521 U.S. at 819-20. In evaluating legislative standing, the Court emphasized the standing requirement that the party allege a "personal injury" was the "key" language. Id. at 818-19 (quoting Warth, 422 U.S. at 500 (emphasis in Raines)). In Raines, individual Members of Congress sued to invalidate the Line Item Veto Act, claiming it was unconstitutional and diminished their powers as Members of Congress. The Supreme Court found that "the

institutional injury they allege is wholly abstract and widely dispersed," and consequently "these individual members of Congress do not have a sufficient 'personal stake' in the dispute and have not alleged a sufficiently concrete injury to have established Article III standing." Raines, 521 U.S. at 829-30.12 As the D.C. Circuit later explained, "a dilution of their authority as legislators is precisely the harm we held in Moore and Kennedy to be cognizable under Article III. It is also, however, identical to the injury the Court in Raines deprecated as 'widely dispersed' and 'abstract.'" Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C. Cir. 1999). A year after Raines, the Supreme Court considered and struck down the same Line Item Veto Act that was at issue in Raines. Clinton v. City of New York, 524 U.S. 417 (1998). The difference in outcome was that the lawsuit was brought by beneficiaries of federal programs that

The Supreme Court also found that such lawsuits run "contrary to historical experience" as, despite numerous "confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power." Raines, 521 U.S. at 826-28 (describing prior incidents), 829.
12

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had passed Congress, but were rendered void by the President's use of the line item veto. In contrast to the Members of Congress in Raines, the parties in Clinton "allege[d] a 'personal stake' in having an actual injury redressed rather than an 'institutional injury' that is 'abstract and widely dispersed.'" Id. at 418. The case before this Court is similar to Clinton in that the Plaintiffs have standing because they are being denied benefits they would be entitled to in the absence of DOMA. That explains why the Plaintiffs are here, and the fact that it falls to the Executive Branch to defend DOMA explains why the Executive Branch has standing to be here. See, e.g., New Hampshire Right To Life PAC, 99 F.3d at 13 ("[W]hen a plaintiff seeks a declaration that a particular statute is unconstitutional, the proper defendants are the government officials charged with administering and enforcing it."). But the Plaintiffs have not sued BLAG or any member of the Legislative Branch, and they do not ask this Court for any judicial relief that would order any part of the Legislative Branch to do anything. Moreover, BLAG's Answer to the Complaint makes clear that it has almost no knowledge about anything having to do with this case. (Ex. 323.) The only injury that BLAG can point to is the institutional injury that the Supreme Court in Raines found was too abstract and dispersed to create a "personal stake" in the litigation. BLAG's own counsel knows that BLAG's intervention is foreclosed by Raines. In

Walker, BLAG's counsel argued that a suit brought by the Comptroller General against the Vice President was "an even more attenuated case for standing than the claims in Raines . . . because this suit is not brought by a member of Congress, but by a congressionally created stalking horse." (Ex. A at 9 (emphasis in original)); see also id. ("Comptroller General acts as Congress's agent").) As he explains: "If Congress could not delegate to individual members the right to sue in Raines, it, a fortiori, cannot delegate that right to a surrogate acting at the request of a few

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individual members." (Ex. A. at 9 (internal citations omitted)). Here, it is the General Counsel of the House that has made the decision to intervene and who is the "congressionally created stalking horse." (Ex. A at 9.) BLAG's counsel went even further and explained that the logic of Raines would compel dismissal for a lack of standing "even if a suit by the Comptroller General could somehow be treated the same as a suit brought by Congress as a whole" because Congress "has not suffered any judicially cognizable injury sufficient to satisfy Article III." (Ex. A at 8 n.5.) BLAG's counsel emphasized that Congress cannot evade the limits on its ability to vindicate abstract institutional injuries in court. Delegation to a congressional agent does not transmogrify a lawsuit into something other than a lawsuit to vindicate institutional interests. The legislative standing problem in Raines would not have gone away if the Line Item Veto Act created a mechanism for the Comptroller General or Senate Legal Counsel to institute a lawsuit at Senator Byrd's request, rather than authorizing him to file the lawsuit himself. (Ex. B. at 8 (emphasis added).) The Senate Legal Counsel is the Senate's equivalent to the House Counsel, which has sought intervention in this case purportedly at the request of BLAG. As BLAG's counsel explained, there would be no standing even if the Comptroller General brought suit "to vindicate the interests of Congress as a whole," and that is just as true here. (Ex. B. at 8.) The court in Walker agreed with BLAG's counsel that even if the harm to Congress was considered, "then the possible injury to Congress is too vague and amorphous to confer standing." Walker, 230 F. Supp. 2d at 67. The Supreme Court has extended Raines to make doubly-clear that the sort of injury BLAG seeks to vindicate is not sufficient to confer standing. Nevada Comm. on Ethics v. Carrigan, 131 S. Ct. 2343 (2011). In Carrigan, the Supreme Court made clear that legislators do not have a personal stake sufficient for Article III purposes in their legislative votes.

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The legislative power thus committed is not personal to the legislator but belongs to the people; the legislator has no personal right to it. As we said in Raines v. Byrd, when denying Article III standing to legislators who claimed that their voting power had been diluted by a statute providing for a line-item veto, the legislator casts his vote "as trustee for his constituents, not as a prerogative of personal power." In this respect, voting by a legislator is different from voting by a citizen. While "a voter's franchise is a personal right," "[t]he procedures for voting in legislative assemblies . . . pertain to legislators not as individuals but as political representatives executing the legislative process." Id. at 2350 (internal citations omitted). Even when the legislative standing doctrine was alive in the D.C. Circuit, it drew vigorous opposition from then-Judge Scalia and Judge Bork. Barnes, 759 F.2d at 21-71 (Bork, J., dissenting); Moore, 733 F.2d at 956-965 (Scalia, J., dissenting). Within the D.C. Circuit, it is recognized that "[v]irtually all of this Circuit's prior jurisprudence on legislative standing now may be ignored. . . . For all intents and purposes, the strict legislative standing analysis

suggested by Justice Scalia in Moore . . . now more closely reflects the state of the law." Campbell v. Clinton, 52 F. Supp. 2d 34, 40 (D.D.C. 1999) (also citing Crockett v. Reagan, 720 F.2d 1355, 1357 (D.C. Cir. 1983) (Bork, J., concurring)); see Kucinich v. Obama, 2011 WL 5005303, at *4 (D.D.C. 2011) (Raines "all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch."); Walker, 230 F. Supp. 2d at 73 n.18 (explaining the law now reflects the views of then-Judge Scalia and Judge Bork "that the role of the judiciary is properly limited to the adjudication of individual rights" and "this Circuit's now-defunct legislative standing doctrines" was overruled). Judge Scalia's dissent in Moore emphasized that it is not the role of federal courts to supervise the internal workings of the executive and legislative branches nor to umpire disputes between those branches regarding their respective powers. Unless and until those internal workings, or the resolution of those inter-branch disputes through the system of checks and balances brings forth a result that harms private rights, it is no part of our constitutional province, which is "solely, to decide on the rights of individuals." . . . [T]hat principle is reduced to

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meaninglessness, and the system of checks and balances replaced by a system of judicial refereeship, if the officers of the political branches are deemed to have a personal, ''private" interest in the powers that have been conferred upon them (whether specifically or vaguely) by the Constitution or statute. 733 F.2d at 959 (quoting Marbury, 1 Cranch at 170). Judge Bork's dissent in Barnes explained that "[t]he phenomenon of litigation directly between Congress and the President . . . was unknown through more than a century and three quarters of our jurisprudence -- until this court accepted the invitation in Kennedy v. Sampson. . . . We ought to renounce outright the whole notion of congressional standing." 759 F.2d at 21; see also id. at 22 n.1 ("The constitutional problems would seem to be identical," whether the party is an individual legislator or the House or Senate as a whole.). He rejected the standing of the "institutional appellants -- the Senate and the leadership of the house" -- because they "are suing not because of any personal injury done them but solely to have the courts define and protect their governmental powers. Until this Circuit permitted such actions eleven years ago, this suit would have been impossible. Indeed, for most of our history this suit would have been inconceivable." Id. at 42. Like Judge Scalia, and the Supreme Court later in Raines, he

emphasized that judicial power did not come into play until the governmental action threatened individual rights. Id. Judge Bork explained the legislative standing doctrine was inconsistent with the law of standing, even as it existed at that time. The Supreme Court already had held that the States cannot advance the argument that their rights were diminished by an unconstitutional exercise of federal authority, the same theory advanced in the legislative standing cases. Barnes, 759 F.2d at 27-30 & n.14 (Bork, J., dissenting) (addressing Massachusetts v. Mellon, 262 U.S. 447 (1923)). Judge Bork also explained that "[i]t is well settled that citizens, whose interest is here asserted

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derivatively, would have no standing to maintain this action. That being so, it is impossible that these representatives should have standing that their constituents lack." Id. at 49-50. In foreshadowing the Supreme Court's decisions in Raines and Carrigan, Judge Bork explained: "The only possible answer is that elected representatives have a separate private right, akin to a property interest, in the powers of their offices. But that is a notion wholly alien to the concept of a republican form of government." Id. at 50 (agreeing with Judge Scalia in Moore). Given the Supreme Court's decisions in Raines and Carrigan, and the return to Judge Scalia's and Judge Bork's view of legislative standing, there can be no doubt that the intervenor lacks standing, whether the intervenor is the General Counsel of the House, the Speaker, BLAG, or the House or Congress as a whole. C. The Chadha Decision Does Not Support Intervention

BLAG misreads the Supreme Court's decision in Chadha to support its right to intervene but, even if its interpretation of Chadha were correct, that interpretation was overruled by Raines and Carrigan. (Ex. 33 at 21, 23-24.) Chadha concerned the constitutionality of a legislative veto, which had been used by the House to veto a decision of the Attorney General to suspend the deportation of Mr. Chadha. INS v. Chadha, 462 U.S. 919, 926 (1983). Chadha sued, claiming the legislative veto was unconstitutional and the Executive Branch agreed, but the Executive Branch appealed so the case could be decided by the Supreme Court. Chadha, 462 U.S. at 930-931 (United States appealed under 28 U.S.C. § 1252, now repealed). The Ninth Circuit invited the House and Senate to brief the issue as amicus curiae, Chadha v. INS, 634 F.2d 408, 411 (9th Cir. 1981), and -- after judgment -- the House and Senate moved to intervene in the Ninth Circuit and those motions were granted without opposition. Chadha, 462 U.S. at 930 n.5.

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BLAG takes refuge in the following language from Chadha: We have long held that Congress is the proper party to defend the validity of a statute when an agency of government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional. Chadha, 462 U.S. at 940 (citing Cheng Fan Kwok v. INS, 392 U.S. 206, 210 n.9 (1968), and United States v. Lovett, 328 U.S. 303 (1946)). While that language has superficial appeal when taken out of context, it does not support the government's position here. The cases cited by Chadha do not hold that Congress is the "proper party" in the sense that it should be allowed to intervene. In Cheng Fan Kwok, the Supreme Court explained: "Since the Immigration Service had aligned itself with petitioner on this question, the Court invited . . . a member of the Bar of this Court, to appear and present oral argument as amicus curiae in support of the judgment below." 392 U.S. at 210 n.9. Likewise, in Lovett, the Executive Branch petitioned for certiorari and Congress argued the case for the constitutionality of the law in question as an amicus curiae. 328 U.S. at 506; see also Lovett v. United States, 66 F. Supp. 142, 143 (Ct. Cl. 1942) ("Special counsel appear in the cases as amici curiae, having been employed to defend the constitutionality of the disputed section."). Plainly, those cases hold that Congress is the proper party to defend the constitutionality of a law the Executive Branch will not defend as an amicus curiae -- something Plaintiffs do not oppose here -- but the cases do not support any notion that Congress should be allowed to intervene.13

Earlier in the Chadha opinion, the Supreme Court noted that in addition to the United States' appeal properly being before the Court under then-existing 28 U.S.C. § 1252, the case was also before it based on the certiorari petitions of the House and Senate. Because the House and Senate were allowed to intervene before the Ninth Circuit, they were "proper 'parties' within the meaning of that term in 28 U.S.C. § 1254(1)." Chadha, 462 U.S. at 930 n.5. In other words,
13

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In Barnes, Judge Bork rejected as an "untenable claim" the suggestion that the language from Chadha relied upon by BLAG showed that Congress had standing to pursue claims of institutional injury. 759 F.2d at 66 (Bork, J., dissenting). As he explained, "Congress, though nominally a party, was in reality much more in the position of an amicus curiae." Id. at 67. There was, in Chadha . . ., an aggrieved individual who sought relief that ran only against the Executive Branch: that satisfied the injury-in-fact, causation, and redressability requirements of article III. Indeed, the Court specifically held that "prior to Congress' intervention, there was an adequate Art. III adverseness even though the only parties were the INS and Chadha." . . . No judgment could be entered against Congress, whose position as an intervenor differed from status as an amicus only in the ability to petition for certiorari. Congress' intervention, in other words, merely highlighted the 'concrete adverseness' of what was already a case-or-controversy. It is a far cry from that carefully limited holding to saying that Congress suffers a judicially cognizable injury when its lawmaking powers are infringed. Id. at 67. Not only was Judge Bork's contemporaneous reading of Chadha correct, but subsequent Supreme Court cases also confirm that Judge Bork's more limited reading of Chadha is accurate. Raines explained there would be "nothing irrational about a system that granted standing" in a series of hypothetical cases where a government officer sued to invoke a separation of powers principle, including a hypothetical in which the Attorney General could have sued to challenge the House veto at issue in Chadha because "it rendered his authority provisional rather than final." 521 U.S. at 828. The Supreme Court rejected that standing could exist in these

hypotheticals under the American system because "it is obviously not the regime that has obtained under our Constitution to date. Our regime contemplates a more restricted role for

because they had been allowed to intervene (unopposed) in the Ninth Circuit, they were a "party" for purposes of Section 1254(1) and allowed to petition for certiorari.

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Article III courts. . . ." Id. The thrust of each of the cases illustrated, like Chadha, was that standing existed only where an individual was injured, and not where there was some institutional injury to a government officer. Recently, in Bond v. United States, the Supreme Court interpreted Chadha as Judge Bork had and explained how it fit comfortably alongside Raines. The Supreme Court explained that "individuals" can vindicate separation of powers principles, and illustrated the point with Chadha. Bond, 131 S. Ct. at 2365. In INS v. Chadha, it was an individual who successfully challenged the so-called legislative veto -- a procedure that Congress used in an attempt to invalidate an executive determination without presenting the measure to the President. . . . A cardinal principle of separation of powers was vindicated at the insistence of an individual, indeed one who was not a citizen of the United States but who still was a person whose liberty was at risk. Id. The Supreme Court then explained: "Chadha is not unique in this respect. Compare Clinton v. City of New York (injured parties have standing to challenge Presidential line-item veto) with Raines v. Byrd (Congress Members do not)." Id. Consequently, it is clear that the Supreme Court in Bond viewed Chadha as being like Clinton, a case where injured individuals have standing, but a case unlike Raines where "Congress Members do not."14

Chadha's holding also can be limited by the kind of statute that was at issue in that case -a statute that gave both Houses of Congress the power to take a particular action (the legislative veto) that was being challenged. This was a very specific power given directly to the House and Senate, which was being challenged. But even if Chadha could be read to provide standing to the House or Senate where a more concrete institutional interest is at stake, that is not the case here. This case does not involve the validity of any statutory right that was given to the House or Senate. While a finding that DOMA or any statute is unconstitutional would limit the power of Congress to enact another statute like it, that is true of every case where the constitutionality of a statute is challenged. Cases subsequent to Chadha make clear that Congress would not have standing in all such cases.
14

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To the extent that Chadha could be interpreted as broadly as BLAG hopes, the subsequent decisions in Raines and Carrigan would overrule such a construction of Chadha. And to the extent Chadha remains good law, it does not carry BLAG as far as it would like to go because it was the House and Senate that voted to intervene in Chadha. The decision never suggested that as subgroup of the House (like BLAG) or Senate could intervene. IV. INTERVENTION IS PRECLUDED BY RULE 24 BLAG claims the authority to intervene as of right under Rule 24(a) or seeks permissive intervention under Rule 24(b). Intervention is not appropriate under either provision. A. Intervention Is Not Allowed As Of Right 1. No Statute Authorizes Intervention

Rule 24(a)(1) authorizes intervention as of right where a putative intervenor "is given an unconditional right to intervene by a federal statute." Fed. R. Civ. P. 24(a)(1). There is no such statute that is applicable in this case. BLAG notes that 28 U.S.C. § 2403 authorizes the "United States" to intervene in a suit in which "the United States or any agency, officer or employee thereof is not a party" to defend the constitutionality of a federal statute. (Dkt. 33 at 20.) But the United States and several of its agencies and officers are parties, and even if this were a suit in which the "United States" could intervene, only the Executive Branch can represent the "United States." See, e.g., 28 U.S.C. § 516 ("the conduct of litigation in which the United States, an agency, or officer thereof is a party, or is interested . . . is reserved to officers of the Department of Justice, under the direction of the

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Attorney General"); 28 U.S.C. § 519 ("the Attorney General shall supervise all litigation to which the United States, an agency, or officer thereof is a party"). BLAG acknowledges

"officers of the United States are parties," but imagines there is some unstated exception to Section 2403 allowing it to intervene when it disagrees with the litigation strategy of those officers. (Dkt. 33 at 20.) There simply is no statute that permits the Legislative Branch to represent the "United States" in litigation. See Windsor v. United States, 797 F. Supp. 2d 320, 323 (S.D.N.Y. 2011) (rejecting BLAG intervention based on Section 2403); see also Providence Journal Co., 485 U.S. at 697 (strictly construing Title 28); Confiscation Cases, 74 U.S. at 458-59 (Executive Branch alone represents the United States). BLAG also notes that intervention is contemplated by 28 U.S.C. § 530D, which is true but it is not an independent source for a right to intervene and certainly does not provide "an unconditional right to intervene." Section 530D(b)(2) requires the Attorney General provide notice of the Executive Branch's decision not to defend the constitutionality to Congress "within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in timely fashion in the proceeding." This provision speaks only to an action by the House or Senate, not by BLAG or some component of either House. And it does not grant an "unconditional right to intervene," but merely requires the Attorney General's notice be timely enough so that the House or Senate could seek to intervene. See Windsor, 797 F. Supp. 2d 323 n.2 (rejecting BLAG intervention based on Section 530D, while finding "there is no statute explicitly authorizing intervention by the House (or any subgroup or representative thereof) to defend the constitutionality of a statute").

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2.

BLAG Has No Interest That Would Authorize Intervention As Of Right

Rule 24(a)(2) provides for intervention as of right when the putative intervenor timely "claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant's ability to protect its interest, unless existing parties adequately represent that interest." Fed. R. Civ. P. 24(a)(2). "Each of these requirements must be fulfilled; failure to satisfy any one of them defeats intervention as of right." Ungar v. Arafat, 634 F.3d 46, 51 (1st Cir. 2011). As explained above in addressing BLAG's lack of standing, BLAG has no such interest in "the property or transaction that is the subject of this action." (See, supra, at 28-37.) The "interest" must be one that is legally protected. See, e.g., Donaldson v. United States, 400 U.S. 517, 531 (1971) ("interest" means a "significantly protectable interest"); Citizens Awareness Network, Inc. v. United States, 391 F.3d 338, 354 (1st Cir. 2004). "An interest that is too contingent or speculative -- let alone an interest that is wholly nonexistent -- cannot furnish a basis for intervention as of right." Ungar, 634 F.3d at 51-52. In Windsor, the district court allowed intervention under this prong based on Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985), without acknowledging -- or apparently realizing (the motion was not opposed) -- that Barnes was overruled by Raines and Judge Bork's dissent in Barnes is now the law of the D.C. Circuit. (See, supra, at 30-37.) The Windsor court cited a string of other legislative standing cases, without any mention of Raines, Carrigan or the more recent cases holding that theory is invalid. Members of the Legislative Branch have no protected interest in whether DOMA is found constitutional or not. Moreover, the interest is a governmental interest of the only federal government that exists in this country -- the United States -- and the United States is represented by the Executive

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Branch in this case. Here, the Executive Branch has decided that it is in the interest of the United States for DOMA to be held unconstitutional because it violates the equal protection rights of active duty and retired members of the U.S. military and their spouses. While BLAG may wish the Executive Branch viewed the United States' interests differently, it is not BLAG's place to complain -- this is a decision vested in the Executive Branch by the Constitution. The Executive Branch adequately represents the interest of the United States in this case. In any event, intervention is not required for BLAG to make its views known. As Plaintiffs noted at the outset of this opposition, they have no objection to BLAG acting as an amicus curiae to inform the Court of its view of the law, and numerous courts have held that is a preferable course to intervention by a party-defendant. (See, supra, at 1-2.) B. Permissive Intervention Should Be Rejected

BLAG also seeks permissive intervention under Rule 24(b)(1)(A), but the Court has the complete discretion to dismiss this request out of hand because BLAG can adequately present its views as amicus curiae. See Ruthardt v. United States, 303 F.3d 375, 386 (1st Cir. 2002) (district court's discretion to deny permissive intervention is "great. There is no basis for saying it was abused, especially where the issues were legal and amici briefs were permitted."). BLAG claims permissive intervention is appropriate only under Rule 24(b)(1)(A), where there "is given a conditional right to intervene by statute," but -- as explained above -- there is no such statute conferring such a right on BLAG. As noted at the outset of this opposition, allowing intervention inevitably leads to some degree of disruption or delay. (See, supra, at 1-3.) BLAG's motion to intervene already has complicated this case and, based upon BLAG's discovery demands in Windsor, Plaintiffs foresee BLAG contributing to more disruption and delay in this case. Given BLAG's ability to address

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the legal issues as amicus curiae, the Court has a more than ample basis to conclude that the burdens of intervention outweigh simply letting BLAG proceed as amicus curiae. As the First Circuit explains, "determining whether permissive intervention would cause disruption or delay 'is the kind of judgment on which the district court's expertise and authority is at its zenith.'" Costa v. Marotta, Gund, Budd & Dzerza, Inc., 281 Fed. Appx. 5, 6 (1st Cir. 2008) (quoting Daggett, 172 F.3d at 113). CONCLUSION BLAG's motion to intervene should be denied because it fails to satisfy the requirements of Rule 24, would violate core separation of powers principles, and amicus curiae status is an adequate vehicle for BLAG to address the legal issues in this case. /s/ Ian McClatchey Ian McClatchey, BBO No. 676664 IMcClatchey@Chadbourne.com CHADBOURNE & PARKE LLP 30 Rockefeller Plaza New York, NY 10112 (212) 408-5303 (phone) (646) 710-5303 (fax)
/s/ John M. Goodman John M. Goodman JGoodman@SLDN.org David McKean DMcKean@SLDN.org SERVICEMEMBERS LEGAL DEFENSE NETWORK Post Office Box 65301 Washington, DC 20035 (202) 621-5401 (phone) (202) 797-1635 (fax)

/s/ Abbe David Lowell Abbe David Lowell ADLowell@Chadbourne.com Christopher D. Man CMan@Chadbourne.com CHADBOURNE & PARKE LLP 1200 New Hampshire Ave., NW Washington, DC 20036 (202) 974-5600 (phone) (202) 974-5602 (fax) Counsel for Plaintiffs

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CERTIFICATE OF SERVICE I hereby certify that, on May 9, 2012, the foregoing was filed with the Clerk of the Court using the Court’s CM/ECF system, which will send electronic notice of such filing to all participants in the case. /s/ Christopher D. Man Christopher D. Man

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Exhibit A

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2002 WL 32388017 (D.D.C.) Page 1

For Opinion See 230 F.Supp.2d 51 Call Westlaw CourtExpress at 1-877-DOC-RETR (1-877-362-7387)to order copies of documents related to this or other matters.Additional charges apply United States District Court, District of Columbia. David M. WALKER, comptroller general of the United States, Plaintiff, v. Richard B. CHENEY, Vice President of the United States, Defendant. C.A. No.1:02cv340JDB May 21, 2002. Memorandum of Points and Authorities in Support of Defendant's Motion to Dismiss and in Opposition to Plaintiff's Motion for Summary Judgment PRELIMINARY Comptroller General David M. Walker seeks to place this Court in the middle of an asserted inter-branch dispute over access to executive branch documents. Specifically, he sought (and continues to seek), based on a request from two individual legislators, documents from the Vice President regarding the process by which the Vice President and top presidential advisers assisted the President in the development of the President's National Energy Policy. In response, the Vice President explained that the Comptroller General's request exceeded his statutory authority and sought unconstitutionally to interfere with the functioning of the presidency. The Comptroller General then filed this suit to enlist the courts in his effort to compel the Vice President to disclose documents. The Comptroller General's claim for judicial relief requires ignoring well-established limits on the judiciary and relies on a virtually boundless view of the Comptroller General's own authority. The Comptroller General's view would work a revolution in the separation of powers. Disputes between the executive and legislative branches that have been resolved without judicial involvement from the earliest days of the republic would be the subject of district court litigation, with the Comptroller General, a congressional agent, playing the central role. Fortunately, the Court can avoid this fundamental reworking of the constitutional scheme by deciding this case on narrower statutory grounds. The Vice President moves to dismiss the suit principally on the grounds that: (1) the Comptroller General lacks standing; (2) the doctrines of justiciability and equitable discretion warrant dismissal of the case; (3) Section 716 of title 31, the asserted jurisdictional basis for this suit, only authorizes suits against the head of an agency, and the Vice President is not the head of an agency; (4) Sections 712 and 717 of title 31, the asserted bases for the Comptroller General's inquiry, do not provide statutory authority for this inquiry; (5) if these statutes did provide the authority that the Comptroller General claims, they would be unconstitutional as applied in this case; and (6) at a minimum, the statutes should be interpreted to avoid such a constitutionally doubtful reach. To survive this motion to dismiss, the Comptroller General must prevail on every one of these statutory and constitutional issues. If the Court dismisses the case on one of the narrower grounds for decision - that the Comptroller General lacks standing to sue, that the doctrines of justiciability or equitable discretion warrant dismissal, or that the Comp-

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troller General cannot sue the Vice President under Section 716 of title 31 because he is not the head of an agency - the Court need not resolve the full reach of the Comptroller General's statutory authority or whether that authority is consistent with the constitutional separation of powers. If the Court goes beyond these narrow grounds, it should strive to interpret the Comptroller General's statutory authority to avoid constitutional difficulties. The Comptroller General asserts a virtually unlimited authority to investigate the Executive Branch. He claims the authority to investigate all expenditures of money, and he views time as money. He claims the authority to investigate program results, and interprets results to include the entire process by which the results were produced. The Comptroller General's interpretation of his authority is neither the only nor the most natural reading of the statutory text, and the most natural reading of the text gives the Comptroller General a still formidable statutory power that co-exists with the Constitution. If, however, this Court determines that Congress intended to aggrandize its agent at the expense of powers exclusively entrusted to the executive branch, then it should strike down the statute as unconstitutional. The Vice President's Message to the House and Senate stated clearly why the Comptroller General's suit cannot stand as a matter of constitutional law: If the Comptroller General's misconstruction of the statutes *** were to prevail, his conduct would unconstitutionally interfere with the functioning of the Executive Branch. For example, due regard for the constitutional separation of powers requires respecting the independence of the President, the Vice President and the President's other senior advisers as they execute the function of developing recommendations for policy and legislation - a core constitutional function of the Executive Branch. Also, preservation of the ability of the Executive Branch to function effectively requires respecting the confidentiality of communications among a President, a Vice President, the President's other senior advisers and others. A President and his senior advisers must be able to work in an atmosphere that respects confidentiality of communications if the President is to get the good, candid advice and other information upon which wise decisionmaking depends. Compl. Ex. J at app. 2. For the reasons explained below, the Vice President asks the Court to deny Comptroller General Walker's motion for summary judgment and to grant the Vice President's motion to dismiss the case. BACKGROUND AND STATEMENT OF FACTS I. GAO's History and Statutory Basis Congress created the office of the Comptroller General and the General Accounting Office (GAO) in the Budget and Accounting Act of 1921, 42 Stat. 20, 23 (1921). It established GAO as an agent of Congress, “independent of the executive departments,” 31 U.S.C. § 702(a), and made the Comptroller General removable only by Congress through the impeachment process or by enactment of a joint resolution removing the Comptroller General for specified causes, 31 U.S.C. § 703(e)(1). See Bowsher v. Synar, 478 U.S. 714, 730-731 (1986) (describing Comptroller General as “an agent of Congress”) (citation omitted). Prior to the adoption of the 1921 Act, no centralized budget process existed. Rather, each department and agency submitted independent budget proposals to Congress, which Congress determined resulted in “extravagance, inefficiency, and duplication of service.” H.R. Rep. No. 14, 67th Cong., 1st Sess. 4 (1921). The 1921 Act thus created both the Bureau of the Budget (now the Office of Management and Budget, 31 U.S.C. § 501), to centralize the budget process, and the General Accounting Office, to provide Congress with a mechanism for auditing cer-

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tain activities of the other parts of government “to insure at all times a businesslike execution of the budget.” H.R. Rep. No. 14, supra, at 7. As the House committee described it: The creation of [the General Accounting Office] will enable it to furnish information to Congress and to its committees regarding the expenditures of the Government. He could and would be expected to criticize extravagance, duplications, and inefficienc[ies] in executive departments. Id. at 8 (emphasis added). Accordingly, the 1921 Act authorized the Comptroller General to “investigate *** all matters relating to the receipt, disbursement, and application of public funds.” § 312, 42 Stat. 20, 25. That same authorization now exists in 31 U.S.C. § 712(1), which authorizes the Comptroller General to “investigate all matters related to the receipt, [FN1] disbursement, and use of public money.” Then, as now, this authorization was intended to allow the Comptroller General to secure “necessary information concerning the financial transactions of the Government.” The General Accounting Office: A Study of Its Functions and Operations, H.R. Rep. No. 81-1441 at 6 (1949) (emphasis added). Consistent with that limited financial purpose, “GAO's activities in the first several decades emphasized strict compliance with laws governing the federal spending process.” See Staff of the Senate Comm. on Governmental Affairs, 103d Cong., 2d Sess., The Roles, Mission and Operation of the U.S. General Accounting Office, 2 (Comm. Print 1994) (National Academy of Public Admin.); Pi's. S. J. Mem. 10. FN1. During the 1982 codification of title 31, Congress replaced the term “application” with “use” in § 712, without intending any substantive effect. See H.R. Rep. No. 97-651, 97th Cong., 2d Sess. 1-3 (1982), reprinted in 1982 U.S.C.C.A.N. 1895, 1895-1897. In 1967, Congress mandated that GAO undertake a more comprehensive review of specified economic opportunity programs to determine not only whether those programs were operating efficiently, but also whether their results were fulfilling the policy goals Congress had set for them. See Economic Opportunity Amendments of 1967, Pub. L. No. 90-222, 81 Stat. 672, 727. The Legislative Reorganization Act of 1970, Pub. L. No. 91-510, 84 Stat. 1140, and the Congressional Budget and Impoundment Control Act of 1974, Pub. L. No. 93-344, 88 Stat. 297, subsequently gave the Comptroller General a similar authority to evaluate the results of federal programs in general. As currently codified, that authority purports to allow the Comptroller General to “evaluate the results of a program or activity the Government carries out under existing law - (1) on the initiative of the Comptroller General; (2) when either House of Congress orders an evaluation; or (3) when a committee of Congress with jurisdiction over the program or activity requests the evaluation.” 31 U.S.C. § 717(b). GAO's authority to conduct program-results evaluations under § 717(b) remains limited to reviewing whether programs created and funded by congressional enactment are efficiently and effectively satisfying Congress's stated goals. See H.R. Rep No. 91-1215 at 17-18, reprinted in 1970 U.S.C.C.A.N. 4417, 4432-33 (House Report to the 1970 Act describing the new “extension[]” of GAO's work in a section entitled “Oversight and Program Analysis Assistance to the Congress,” and stating that GAO's new non-audit responsibilities were intended to assist Congress in “determining whether existing programs are being administered in accordance with congressional intent” and in “exploring the advisability of modifying or even of abolishing such programs”) (emphasis added). As then-Comptroller General Staats explained, § 717(b) clarifies GAO's “charter to review and evaluate Federal and federally assisted programs as to whether these programs are being carried out as intended by the Congress. In other words, [the statute allows GAO to determine] whether programs are achieving congressionally stated objectives in the most effective manner and at the lowest cost.” Letter from Comptroller General

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Elmer B. Staats to Rep. B.F. Sisk (Oct. 31, 1969) (Pl's. SJ. Mem. Ex. 7) (emphases added). Finally, in the General Accounting Office Act of 1980, 94 Stat. 311, 312, Congress added the current provisions of 31 U.S.C. § 716(b), which purport to provide a judicial-enforcement mechanism to assist the Comptroller General in his efforts to inspect agency records. Where “an agency record is not made available to the Comptroller General,” he may make a written request to the head of the agency. § 716(b)(1). If the agency head does not provide the requested records within twenty days, the Comptroller General may report that fact to the President, the Director of the Office of Management and Budget, the Attorney General, the agency head, and Congress. Ibid. The Act provides that, after waiting twenty more days, the Comptroller General may initiate litigation “to require the head of the agency” to produce the records. § 716(b)(2) (emphasis added). No suit may be filed, however, if the records sought pertain to foreign intelligence or counterintelligence, if the records are exempt by statute from disclosure to the Comptroller General, or if the President or the OMB Director certifies within twenty days of the Comptroller General's report that the records would be exempt from disclosure under the Freedom of Information Act's exemptions for deliberative or confidential law enforcement records and that disclosure would “impair substantially the operations of the Government.” § 716(d)(1). Title 31 defines the term “agency” to mean “a department, agency, or instrumentality of the United States Government.” 31 U.S.C. § 101. Nothing in either the text or legislative history of title 31 identifies the President, the Vice President, or close presidential advisers within the definition of “agency” subject to suit by the Comptroller General. II. The Present Dispute On January 29, 2001, the President created the NEPDG, composed of the Vice President, the Secretaries of Treasury, Interior, Agriculture, Commerce, Transportation and Energy, the Director of the Federal Emergency Management Agency, the Administrator of the Environmental Protection Agency, the Deputy Chief of Staff to the President for Policy, and the Assistants to the President for Economic Policy and Intergovernmental Affairs. Compl. Ex. A. Acting pursuant to the powers granted to the President by the Constitution, including the powers to obtain opinions from the principal officers in the Executive Branch and to recommend for the consideration of Congress such measures as the President judges “necessary and expedient,” see U.S. CONST. art II, § 2, cl. 2; id. art. II § 3, the President charged the NEPDG to develop, under the Vice President's leadership, a national energy policy and “to gather information, deliberate, and *** make recommendations to the President.” Compl. Ex. A at 2. The NEPDG made its recommendations to the President in May 2001. Under the terms of the President's memorandum, the NEPDG ceased to exist by September 30, 2001. Id. at 3. Even before the NEPDG completed its work, two individual congressmen, Rep. John D. Dingell, who happens to be the ranking minority member of the House Committee on Energy and Commerce, and Rep. Henry A. Waxman, who happens to be the ranking minority member of the House Committee on Government Operations, asked GAO to investigate the manner in which the NEPDG conducted its business. Compl. ¶ 21. Solely as a result of this request, GAO initiated an investigation. Id. at ¶¶ 21-22. See also id. at ¶ 14. GAO initially demanded access to a broad range of documents as well as interviews with members and staff. Id., Exh. C. Although it questioned GAO's legal authority to investigate the NEPDG, the Office of the Vice President did provide, as a matter of comity and reserving all authorities and privileges, information concerning the composition of the NEPDG staff, the nature of their activities, the number and dates of NEPDG meetings, and its expenditures. Id. at ¶ 26, 30.

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GAO persisted in its sweeping requests for information about the NEPDG. Following informal attempts at an amicable resolution, the Comptroller General formally demanded a broad range of information under 31 U.S.C. § 716(b) on July 18, 2001. Among the categories of information he sought were the identities of all persons who attended NEPDG meetings, information regarding staff, the identity of all persons consulted by the Vice President and NEPDG staff, the contents of all discussions with such persons (including minutes and notes of such meetings), and the criteria used to determine with whom the Vice President and the staff met. Compl. ¶ 39, Ex. I. As alleged in the Complaint, the Comptroller General subsequently withdrew his initial requests for minutes and notes of meetings. Id. at ¶ 42. Nevertheless, as the Complaint and plaintiff's memorandum in support of his motion for summary judgment both make clear, the Comptroller General continues to insist that the Vice President must disclose, inter alia, every person with whom the Vice President met while he was serving as a close presidential adviser discharging express constitutional functions at the request of the President and the “purpose” and “agenda” of each of those meetings. He even demands information concerning what decision-making process the Vice President and his staff followed in “determin[ing] who would be invited to the meetings.” Compl. Prayer for Relief ¶ (a); Pl's. S.J. Mem. 25-26,28,34. The Vice President declined to comply with these sweeping, intrusive, and unprecedented requests because they exceeded the Comptroller General's statutory authority and would unconstitutionally have interfered with the [FN2] functioning of the Executive Branch. Compl. ¶ 44. FN2. As the Complaint correctly notes, GAO also pursued similar inquiries with other agencies, whose heads were members of the NEPDG. Those agencies responded to GAO's requests, except to the extent that the requests overlapped with those directed to the Vice President for meetings held by the Vice President or NEPDG staff. Compl. ¶ 51. Again invoking § 716, the Comptroller General reported the existence of the dispute to the President, the Vice President, Congress, the Attorney General, and the Director of the Office of Management and Budget on August 17, 2001. Id. at ¶ 47. On September 6, 2001, the Office of the Vice President provided certain additional information relating to the identities of the NEPDG staff, id. at ¶ 52, but again declined to provide the expansive range of documents demanded. The Comptroller General then filed this unprecedented action, initiating a lawsuit, purportedly under 31 U.S.C. § 716(b), for a judicial decree forcing the Vice President to comply with the Comptroller General's demands for information regarding the deliberations of the President's internal task force. ARGUMENT _______The Comptroller General alleges a right to documents concerning the discharge of the President's constitutional functions in the possession of the President's closest advisers, and indeed the President himself. That alleged right is completely inconsistent with the constitutional system of separation of powers. That doctrine limits the role of the judiciary to deciding only those cases where the plaintiff has a genuine stake in the outcome of the litigation. Where, as here, a plaintiff has not suffered any personal injury and attempts to assert only the general, institutional interests of Congress, he lacks standing. Moreover, even when parties have had standing, courts in comparable cases have relied on principles of separation of powers to decline to exercise jurisdiction, remitting such matters to the political branches for resolution. In addition, the Comptroller General lacks the statutory authority he claims, especially in light of separation-of-powers principles. A straightforward construction of the applicable statutes alone compels the conclusion that the Comptroller General's demands in this case are ultra vires. That conclusion is only bolstered by the separation-of-powers implications of this case; the principle of constitutional avoidance clearly precludes the Comptroller General's overly expansive interpretation

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of his statutory authority. Finally, if the Comptroller General's sweeping construction of his statutory authority were correct, then his demands for documents from the Vice President would violate the separation of powers by directly interfering with the President's ability to discharge his express constitutional functions and by providing a legislative agent with an executive power to seek judicial enforcement of the law. I. Plaintiff Lacks Standing to Maintain This Action This Court need not reach the merits of this dispute because the Comptroller General lacks Article III standing to bring this suit. “No principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (quoting Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976)). It is a bedrock of Article Ill's case-or-controversy requirement that a plaintiff must establish his personal standing to sue. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (plaintiff bears burden of establishing standing); see also Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 471 (1982). The Supreme Court has repeatedly emphasized that a core purpose of Article Ill's standing doctrine is to safeguard the proper separation of powers by preventing courts from wading into disputes that are better resolved by the political branches of government. “[T]he law of Article III standing is built on a single basic idea - the idea of separation of powers.” Allen v. Wright, 468 U.S. 737, 752 (1984). These separation-of-powers concerns are heightened where the courts are asked to resolve a dispute between the coordinate political branches. The “standing inquiry [is] especially rigorous when reaching the merits of the dispute would force [the court] to decide whether an action taken by one of the other two branches of the Federal Government was unconstitutional.” Raines, 521 U.S. at 819-20 (citations omitted). To satisfy his burden of establishing standing, “[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen, 468 U.S. at 751. Whether a plaintiff possesses standing “often turns on the nature and source of the claim asserted.” Warm v. Seldin, 422 U.S. 490, 500 (1975). The Supreme Court has “consistently stressed that a plaintiff's complaint must establish that he has a ‘personal stake’ in the alleged dispute, and that the alleged injury suffered is particularized as to him.” Raines, 521 U.S. at 819. This “personal stake” requirement is of particular concern in a suit, such as this one, brought to vindicate congressional interests. See Raines, 521 U.S. at 818-20. Under those circumstances, an individual plaintiff must assert a personal, not institutional, interest to establish injury in fact. Id. at 820-21. Because plaintiff's Complaint does not allege any such personal stake in this case, it must be dismissed for lack of standing. Indeed, this suit is far removed from an exercise of the “judicial Power” and the resolution of “Cases” and “Controversies” as the Framers understood those terms. As the Supreme Court has explained, “Article III's restriction of the judicial power to ‘Cases' and ‘Controversies' is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.”’ Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 774 (2000) (citation omitted). There certainly is no history or tradition that would support inter-branch lawsuits, much less inter-branch suits brought by a mere agent of Congress. In Raines, the plaintiffs were members of Congress challenging the validity of the Line Item Veto Act, which they had opposed as legislators. They brought suit under a provision of the Act that purported to grant standing

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and authority to challenge the Act's constitutionality to “[a]ny member of Congress.” 521 U.S. at 815 (citation omitted). The plaintiffs claimed that the Act injured them by altering the balance of powers between the executive and legislative branches and by changing the effectiveness of their votes on appropriations bills. At the outset, the Supreme Court warned that “[i]n the light of th[e] overriding and time-honored concern about keeping the Judiciary's power within its proper constitutional sphere, we must put aside the natural urge to proceed directly to the merits of this important dispute.” Id. at 820. “Instead,” the Court explained, “we must carefully inquire as to whether appellees have met their burden of establishing that their claimed injury is personal, particularized, concrete, and otherwise judicially cognizable.” Ibid. The Court in Raines found no such injury on the part of the individual members of Congress. At most, the Court ruled, the members had only alleged “institutional injury (the diminution of legislative power), which necessarily damages all Members of Congress and both Houses of Congress equally.” 521 U.S. at 821. Because “the institutional injury they allege[d was] wholly abstract and widely dispersed,” id. at 829, it was insufficient to con[FN3] fer standing on any individual member of Congress. FN3. The Supreme Court contrasted Raines with Powell v. McCormack, 395 U.S. 486 (1969), where it recognized the standing of an individual congressman to challenge his expulsion by the House because he had a personal interest in, inter alia, receiving a congressional salary. The Raines Court also emphasized that history cut strongly against legislative standing. “It is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.” 521 U.S. at 826. The Court recounted separation-of-powers disputes that arose over more than a century of the Nation's history and concluded that in each case, neither Congress nor the Executive sought judicial intervention. Id. at 826-828. While the Court acknowledged that “[t]here would be nothing irrational about a system that granted standing in these cases,” it held that such a system “is obviously not the regime that has obtained under our Constitution to date.” Id. at 828. Rather, “[o]ur regime contemplates a more restricted role for Article III courts.” Ibid. The Raines Court held that Congress cannot evade the Article III requirement of a particularized injury by authorizing an individual who lacks such an injury to bring suit. “It is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” 521 U.S. at 820 n.3. Accordingly, the Court found no Article III standing despite the Line Item Veto Act's express authorization of “[a]ny member of Congress” to bring an action for declaratory and injunctive relief challenging the Act's constitutionality. The Supreme Court in Raines emphasized that Congress itself had taken no action to press the dispute and that individual congressmen had alternative remedies they could pursue: We attach some importance to the fact that appellees have not been authorized to represent their respective Houses of Congress in this action ***. We also note that our conclusion neither deprives Members of Congress of an adequate remedy (since they may repeal the Act or exempt appropriations bills from its reach) *** 521 U.S. at 829 (footnote omitted). The Raines Court cited Bender v. Williamsport Area School Dist., 475 U.S. 534, 544 (1986), and United States v. Ballin, 144 U.S. 1, 7 (1892), for the proposition that legislative bodies must generally act collectively. 521 U.S. at 829. The absence of such collective action precludes the assertion of an institutional injury, even where Congress has initially authorized suits by certain individuals.

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In two subsequent cases, the D.C. Circuit has applied this same rule to preclude challenges by individual members of Congress on standing grounds. In Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999). cert. denied. 529 U.S. 1012 (2000), the court held that individual members of Congress lacked standing to challenge an executive order on the protection of rivers on the ground that the order denied them the opportunity to vote on the order's subject matter. The court found such a claimed injury “identical” to that dismissed by the Supreme Court in Raines as insufficient. 181 F.3d at 117. And, in Campbell v. Clinton, 203 F.3d 19. 20-21 (D.C. Cir.), cert. denied , 531 U.S. 815 (2000), the court held that individual congressmen lacked standing to challenge the President's alleged noncompliance with either the War Powers Resolution, 50 U.S.C. § 1541 et seq., or the War Powers Clause of the Constitution. The court confirmed that individual members do not have standing to assert Congress's institutional interests in an inter-branch dispute because “political self-help [is] available to congressmen,” in the form of power over appropriations or even “the possibility of impeachment.” 203 F.3d at 23, 24. “Indeed,” the court reasoned, “Raines explicitly rejected [the] argument that legislators should not be required to turn to politics instead of the courts for their remedy.” Id. at 24. Raines, Chenoweth, and Campbell preclude the Comptroller General's standing in this case. Here, the Comptroller General, is simply acting as a surrogate for two individual members of Congress, purportedly to vindicate an institutional Legislative Branch interest in access to executive branch documents. The Comptroller General makes no claim of any individualized or personal injury to himself. To the contrary, he asserts that he instituted this action as an agent of Congress, acting at the behest of two individual members. Nor do the two congressmen assert a personal interest in the documents, and the only legitimate interest that could be asserted by congressmen qua congressmen would be for the use of the documents necessary for the legislative process. The Comptroller General lacks standing to vindicate that institutional interest, as Raines makes clear. This is particularly true where, as here, Congress has numerous potential political avenues for obtaining information it needs for legislative purposes, and Congress and the Executive Branch have traditionally used their political mechanisms to resolve disputes over documents. Indeed, as GAO has acknowledged, if it fails to obtain documents under § 716, “Congress could invoke its own authorities to attempt to gain access.” Pi's. S. J. Mem. Ex. 6, at 14. The give and take of informal interactions between Congress and the Executive Branch, on occasion backed by more formal mechanisms of, e.g., congressional subpoenas - not judicial actions brought by congressional agents - is “the re[FN4] gime that has obtained under our Constitution to date.” Raines, 521 U.S. at 828. FN4. Notably, the Constitution provides for the political branches to address each other directly in the governance of the Nation in various ways, see, e.g., U.S. CONST, art. II, § 3 (President authorized to “give to the Congress Information of the State of the Union,” and to “recommend to their Consideration such Measures as he shall judge necessary and expedient”); id. art. I, § 7, cl. 2. (Congress required to “present[]” bills for President's review, and if he disapproves he must return it “with his Objections”); id. art. I, §§ 2,3 (describing impeachment power), but provides no mechanism for invoking judicial resolution of inter-branch disputes. Here, however, no House of Congress or congressional committee has invoked the traditional mechanisms to obtain information or has undertaken any effort to obtain any of the records plaintiff seeks. As in Raines, neither House of Congress has authorized any action on behalf of either the Senate or the House. Raines thus makes clear that individual Members of Congress cannot assert Congress's institutional interests. Section 716's authorization for judicial actions does not suffice to give the Comptroller General standing. As Raines demonstrates, the “authorization” that is potentially relevant to the standing inquiry is an authorization by Congress acting collectively after a particular dispute has arisen, not some general statutory authorization to

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file suit made in advance of a particular dispute. See 521 U.S. at 820, 829. In sum, as was the case with the plaintiffs in Raines, the Comptroller General “ha[s] alleged no injury to [himself] as [an] individual[] (contra, Powell), the institutional injury [he] allege[s] is wholly abstract and widely dispersed (contra, Coleman), and [his] attempt to litigate this dispute at this time and in this form is contrary to historical experience.” Id. at 829. Indeed, plaintiff's claim presents an even more attenuated case for standing than the claims in Raines, Chenoweth, or Campbell because this suit is not brought by a member of Congress, but by a congressionally created stalking horse. The Comptroller General acts as Congress's agent, Bowsher, 478 U.S. at 732, and, as such, he necessarily seeks to vindicate Congress's institutional interests. And here, the Comptroller General is essentially acting to fulfill the curiosity of two individual members. While Raines left open the question of whether Congress itself could bring suit for institutional injuries through a majority vote of its members (or the members of one chamber), it makes clear that anything short of such collective action does not satisfy Article III. 521 U.S. at 827-30 & n.10. If Congress could not delegate to individual members the right to sue in Raines, 521 U.S. at 820 n.3, it, a fortiori, cannot delegate that right to a surrogate acting at the request of a few individual members. (Indeed, purporting to do so creates unique separation-of-powers problems.) Were it otherwise, the holding in Raines would be entirely ineffective and inexplicable. GAO, acting as an agent of Congress, but without the specific authorization of even one House of Congress, simply cannot satisfy the particularized, personal injury re[FN5] quirement of Article III. FN5. Indeed, even if a suit by the Comptroller General could somehow be treated the same as a suit brought by Congress as a whole (rather than by the two individual members who requested the investigation), plaintiff would still lack standing for the basic reasons articulated in Raines. This unprecedented GAO suit threatens core separation-of-powers values by injecting the courts into inter-branch disputes. Such judicial actions are not “the regime that has obtained under our Constitution to date,” Raines, 521 U.S. at 828, and Article III standing principles prohibit this innovation. As explained below in Part IV, Congress has no right to information concerning the process by which the President exercises his constitutionally-assigned powers to call for the opinions of his top advisers and to recommend legislation to Congress that he judges necessary and expedient, and therefore it simply has not suffered any judicially congnizable injury sufficient to satisfy Article III. Moreover, as explained below in Part III.D, the Comptroller General has not followed the procedures for initiating suit set forth by Congress, and so this suit has not been “authorized” in any sense of the term. II. This Action Is Also Nonjusticiable under the Doctrine of Equitable Discretion Even if plaintiff had standing, the D.C. Circuit has practiced restraint in cases of this type, in recognition of the same separation-of-powers concerns that underpinned the Supreme Court's holding in Raines. Disputes between the executive and legislative branches over access to documents date back to the Washington Administration. Judicial resolution of these inherently political disputes, however, is virtually unprecedented. Raines, 521 U.S. 826-828. That no court has ever examined GAO's statutory authority to sue the Executive Branch under § 716 is no mere coincidence. No Comptroller General has ever sued under those provisions (see Pl's. S.J. Mem. 17). That record presumably reflects that the courts, rather than enter this inherently political thicket, generally leave such political disputes for resolution by the political branches through the political process, and that the political process has proved capable of resolving such disputes in the past. Indeed, as demonstrated below, these concerns have led courts, even when faced with demands sanctioned by full committees or even full chambers of Congress, to decline to hear such cases. This lawsuit provides an even less compelling circumstance for departure from this longstanding tradition of judicial restraint, as no legislative body has authorized either GAO's request

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for records or this litigation. Even before the Supreme Court confirmed that Article III precludes suit by individual members of Congress to vindicate institutional interests, the D.C. Circuit accommodated the serious separation-of-powers concerns inherent in inter-branch disputes under the equitable or remedial discretion doctrine, which calls for courts to refrain from exercising jurisdiction over such litigation. The D.C. Circuit first expressly applied that doctrine in cases brought by legislators where the standing or political-question doctrines were thought to be insufficient means of articulating the separation-of-powers concerns presented by such cases. See Riegle v. Federal Open Market Comm., 656 F.2d 873, 880-81 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). Thus, the D.C. Circuit concluded, “[t]he most satisfactory means of translating our separation-of-powers concerns into principled decisionmaking is through a doctrine of circumscribed equitable discretion” to be applied in cases “[w]here a congressional plaintiff could obtain substantial relief from his fellow legislators ***.” Id. at 881; see also Melcher v. Federal Open Market Comm., 836 F.2d 561 (D.C. Cir. 1987), cert. denied, 486 U.S. 1042 (1988); Moore v. United States House of Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985). Accordingly, where individual members have sought judicial review of executive action in advance of any action by Congress itself, courts have repeatedly applied their remedial discretion to withhold relief. See, e.g., Crockett v. Reagan, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Lowry v. Reagan, 676 F. Supp. 333, 339 (D.D.C. 1987). Those same concerns were presaged in earlier confrontations between the Executive and Congress over documents. In United States v. AT&T Co., 551 F.2d 384 (D.C. Cir. 1976), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977), the Justice Department sought to block production of a telephone company's records of national security wiretaps to a congressional committee in response to a congressional subpoena. The court noted that the subject of the inquiry, wiretap legislation, was a “suitable area of federal legislation,” 551 F.2d at 393, and that the House of Representatives, as a whole, had voted to intervene in the lawsuit, thereby negating “the possibility of a wayward committee acting contrary to the will of the House.” Id. Acknowledging the interests of both branches and the difficulty inherent in any judicial effort to balance those interests, the court noted that “[t]he legislative and executive branches have a long history of settlement of disputes that seemed irreconcilable.” Id. at 394. The AT&T case would have been a relatively easy case for judicial resolution because, unlike most disputes between the Legislative and Executive Branches over documents, the relevant records were in the hands of a non-governmental party. But despite its power to resolve the dispute, the court declined to do so, ordering instead that the parties seek a negotiated solution. In so doing, the court emphasized that a judicial resolution would not necessarily protect the interests of both branches and could forever alter the constitutional balance of powers: This dispute between the legislative and executive branches has at least some elements of the political-question doctrine. A court decision selects a victor, and tends thereafter to tilt the scales. A compromise worked out between the branches is most likely to meet their essential needs and the country's constitutional balance. 551 F.2d at 394; accord Leach v. Resolution Trust Corp., 860 F. Supp. 868, 874-876 (D.D.C. 1994) (dismissing suit filed by congressman). Applying this same rule, the court in United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) , declined to entertain a declaratory judgment action by the Executive Branch concerning the rights of a House committee to subpoena documents over which the President asserted executive privilege:

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When constitutional disputes arise concerning the respective powers of the Legislative and Executive Branches, judicial intervention should be delayed until all possibilities for settlement have been exhausted. Judicial restraint is essential to maintain the delicate balance of powers among the branches established by the Constitution. 556 F. Supp. at 152 (citation omitted). Unlike AT&T or House of Representatives, the present action comes with no legislative endorsement by either House or even by a committee. No subpoena has been issued, no resolution has been passed, and no statute has been enacted in response to this dispute. This controversy thus lacks even the level of contention, urgency, or finality presented in those cases. Consequently, there is an even less compelling need for judicial intervention [FN6] here. FN6. As this case amply demonstrates, the equitable jurisdiction doctrine is among “‘the doctrines that cluster about Article III”’ to “define[] with respect to the Judicial Branch the idea of separation of powers on which the Federal Government is founded.” Allen, 468 U.S. 750 (quoting Vander Jagt v. O'Neill, 699 F.2d 1166, 1178-1179 (D.C. Cir. 1982) (Bork, J. concurring)). Because those doctrines, which in addition to equitable discretion include standing, mootness, ripeness, and political question, often “overlap[],” the same concerns that should lead this court to apply the equitable discretion doctrine also raise concerns under the ripeness and political question doctrines. In a case strikingly similar to this one, this Court in Leach v. Resolution Trust Corp., 860 F. Supp. 868 (D.D.C. 1994), declined to give an expansive reading to a statutory provision allowing access for a ranking minority committee member to agency records otherwise exempt from disclosure under the FOIA. This Court noted that the ranking member had failed to persuade a majority of the committee to authorize his request for the documents sought in litigation and that many of the documents sought were, in fact, being produced to the committee. 860 F. Supp. at 874-76. In such circumstances, where a single member of Congress in the legislative minority sought to invoke judicial review, the Court noted that it was “extremely hesitant to interfere with the legislative process” and concluded “that the exercise of its remedial discretion to decline review *** is the appropriate method of coping with the important separation-of-powers concerns implicated by this suit.” 860 F. Supp. at [FN7] 876. FN7. In Chenoweth, the court noted that the equitable discretion doctrine had developed, in part, as an alternative application of separation-of-powers concerns, after the D.C. Circuit (prior to Raines) had erroneously permitted individual members of Congress to sue the Executive Branch. The court held that Raines compelled dismissal of the claims in Chenoweth for lack of standing. 181 F.3d at 114-116. It noted, however, that the same result would apply under its remedial discretion, as plaintiffs could seek a political solution through legislation. 181 F.3d at 116. The same separation-of-powers concerns underlying those cases should lead this Court to dismiss this action. As plaintiff has conceded, the inquiry here originated with a request from two individual members of Congress and may now be supported by some individual Senators. See Pl's. S. J. Mem. 38-39. Neither request came with the authorization of a full House (or even a committee). Although neither Member has the authority to compel the production of any documents on his own, the Comptroller General purports to exercise his discretionary author[FN8] ity on their behalf. The intervention of the Comptroller General, however, cannot change the fact that the two instigating Members lack the support of either a committee or chamber majority. Just as in Leach, neither

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ranking minority member has been able to persuade a sufficient number of his colleagues to support the request for information. Nor has any of the committees chaired by the interested Senators taken action here. Rather, in substance, the dispute here is still between the interested Members and their colleagues, not the Comptroller General and defendant, and it is precisely this type of dispute for which the equitable discretion doctrine was devised. FN8. Enforcement of congressional subpoenas is normally preceded by a collective action of a full House, such as authorizing a referral to a U.S. Attorney for prosecution, Wilson v. United States, 369 F.2d 198 (D.C. Cir. 1966). In earlier times, Houses were known to conduct contempt proceedings before the full chamber. In re Chapman, 166 U.S. 661 (1897). Congress is well-equipped under the Constitution to engage in disputes over documents with the Executive Branch, such as through the use of its subpoena power. Even if the House had done so, the same separationof-powers concerns underlying the decisions in AT&T and House of Representatives, discussed above, would require judicial restraint. That it has not done so here is strong evidence that Congress, as a collective institution, has not deemed this matter of sufficient moment to precipitate the confrontation plaintiff now seeks. As Leach demonstrates, it makes no sense to precipitate constitutional confrontations by allowing a congressional agent ready access to federal court that circumvents the appropriately cumbersome process of getting a full House to take action. Under the equitable discretion doctrine, judicial intervention in these circumstances is simply not warranted. III. The Comptroller General Has No Statutory Authority to Bring This Lawsuit or to Review the Activities of the NEPDG Even if the Comptroller General were assumed to have Article III standing to bring this lawsuit (which he does not), and even if the principles of justiciability and equitable discretion were assumed not to warrant its dismissal (which they do), the Comptroller General has failed to state a claim on which relief can be granted. A straightforward reading of the statutes on which he relies does not support the virtually limitless authority he asserts. Accordingly, this Court should dismiss the Complaint. A. Section 716 does not authorize this lawsuit because the Vice President is not the head of an agency The Comptroller General's claim to judicial review rests on a statutory provision that purports to allow him to “bring a civil action in the district court of the United States for the District of Columbia to require the head of the agency to produce a record.” 31 U.S.C. § 716(b)(2). Plaintiff's extended treatment of his statutory authority under §§ 712 and 717 (see Pl's. SJ. Mem. 23-48) is therefore all for naught if he cannot establish a statutory right to bring a judicial-enforcement action under § 716(b). Yet, the sole defendant in this lawsuit, the Vice President, is not “the head of [an] agency,” as § 716(b) requires. Cf. 31 U.S.C. § 716(a) (allowing Comptroller General to “inspect an agency record”). Accordingly, by its plain terms, § 716(b) does not authorize this action. As a result, regardless of whatever “right to access and examine any records of the executive branch” (Pl's. SJ. Mem. 12) the Comptroller General claims, this lawsuit must be dismissed because it is not an attempt to require “the head of [an] agency to produce a record.” In his summary judgment motion, plaintiff contends that “Congress used the term ‘agency’ in its broadest sense,” and that “both the NEPDG and the [Office of the Vice President]” are agencies under § 716. Pl's. SJ. Mem. 49. But like so many of plaintiffs arguments, his so-called plain-meaning argument proves far too much. If taken seriously, it would actually empower the Comptroller General to seek records directly from the Presid-

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[FN9] ent, or from this Court concerning meetings with its law clerks. Plaintiff's attempt to treat the Vice President as an agency head is no less an affront to our government of separated powers, but it is, in any event, clearly barred by established case law. FN9. Plaintiff emphasizes that the chapter of title 31 dealing with GAO refines the definition of “agency” by excluding “the legislative branch” and “the Supreme Court.” See 31 U.S.C. § 701(1). But under plaintiff's mechanical application of statutory-construction canons, that exclusion would suffice to demonstrate that this Court is an “agency,” or at least an “instrumentality” or “office *** of the Government.” Pl's. SJ. Mem. 50. Moreover, under plaintiff's theory, the express exclusion of the Supreme Court would be superfluous if Article III courts were not already included in title 31's general definition of “agency”; and the exclusion of one court certainly implies that all other courts are included. Thus, under plaintiff's construction of title 31, this Court is an “agency” subject to the Comptroller General's judicial-enforcement authority. 1. Congress has not expressly stated that the Vice President is an “agency” under title 31 Contrary to plaintiff's claims, neither the Vice President nor the Office of the Vice President (OVP) can reasonably be considered an “agency.” Even if the Vice President or OVP might arguably fall within the nebulous phrase “instrumentality of the United States Government,” 31 U.S.C. § 101 (defining “agency”), Congress's failure to state expressly any intent to reach the Vice President prevents this Court from concluding that he is an agency or head of an agency for purposes of title 31. In Franklin v. Massachusetts, 505 U.S. 788 (1992), the Supreme Court considered whether the President is an “authority of the Government of the United States” and thus an “agency” under the Administrative Procedure Act. Id. at 800 (quoting 5 U.S.C. §§ 701(b)(1), 551(1)). Of course, the President is literally an “authority of the Government.” Nevertheless, the Court concluded that, when the President is neither “explicitly excluded” nor “explicitly included,” “ textual silence is not enough ” to make the President an “agency.” Id. at 800-801 (emphasis added). Instead, it would “require an express statement by Congress” to establish otherwise. Id. at 801 (emphasis added). As the Court explained, this clear-statement requirement arose “[o]ut of respect for the separ[FN10] ation of powers and the unique constitutional position of the President.” Id. at 800. FN10. The Court's reference to “respect for the separation of powers,” 505 U.S. at 800, does not change the fact that it required an “express statement,” rather than merely invoking the canon of constitutional avoidance to construe a statutory term. Although they are sometimes both implicated in an individual case, the two principles are different. See, e.g., Vermont Agency v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000) (explaining that the Court's construction of the word “person” in the qui tarn statute was “buttressed by two other considerations,” a clear-statement requirement and the constitutionalavoidance doctrine). In this case, the clear-statement requirement means that Congress must expressly mention the President or the Vice President in a statute (which it has not done in the case of title 31). The canon of constitutional avoidance, as discussed below in Part V, independently means that this Court should, in order to avoid the serious constitutional problems posed by plaintiff's broad readings of §§ 712, 716, and 717, adopt the straightforward constructions offered by the defendant - such as a construction of § 716 that excludes the Vice President from its scope. Two years later, the Court reconfirmed its holding that the President is not an “agency.” See Dalton v. Specter, 511 U.S. 462, 470 (1994). Since then, courts in this Circuit have looked to Franklin's express-statement require-

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ment in construing statutes other than the APA. See Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 905 (D.C. Cir. 1993) (AAPS) (“Although [the anti-nepotism statute] defines agency as ‘an executive agency,’ we doubt that Congress intended to include the White House or the Executive Office of the President.” (citing, inter alia, Franklin)); Tulare County v. Bush, 185 F. Supp. 2d 18, 28 (D.D.C. 2001) (“Because the President is not a federal agency within the meaning of the APA, presidential actions are not subject to review pursuant to the APA. Applying similar logic, the President is not a federal agency for the purposes of [the National Environmental Policy Act].” (internal citations omitted)). Franklin's clear-statement requirement should apply equally to the Vice President. Like the President, the Vice President has a “unique constitutional position.” Franklin, 505 U.S. at 800. He alone, among senior executivebranch officials, is “totally protected from the President's removal power.” Meyer v. Bush, 981 F.2d 1288, 1295 (D.C. Cir. 1993). He alone is designated by the Constitution to serve as Acting President (see U.S. CONST. amend. XXV), or to “become President” upon the death of the President elect (id., amend. XX, § 3), or upon the removal, death, or resignation of the President (see id., amend. XXV, § 1). In fact, he and the President are the only two public officials in the United States who are elected through a process involving every State. See id., art. II, § 1 & amend. XII. Similarly, the presidency and vice presidency are the only two offices that are defined in Article II of the Constitution, rather than by statute. Finally, the Vice President alone has legislative functions as the President of the Senate. See U.S. CONST. art. I, § 3, cl. 4. Given his unique constitutional status in the Executive Branch, the Vice President should enjoy the protection of Franklin's clear-statement requirement. In fact, in a parallel context, Congress itself has already recognized that the President and the Vice President are like each other but unlike federal agencies. The general statutory framework that governs the preservation, handling, and disclosure of federal-government records creates two mutually exclusive categories. See Armstrong v. Executive Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996), cert. denied, 520 U.S. 1239(1997). The first category, “agency” records, is covered by the Federal Records Act. See id.; 44 U.S.C. §§ 3101-3107, 33013314. The second category is covered by the Presidential Records Act. See Armstrong, 90 F.3d at 556; 44 U.S.C. §§ 2201-2207. Tellingly, Congress has classified the executive records of the Vice President and his staff as “Presidential records” rather than “agency” records. See 44 U.S.C. § 2207 (“Vice-Presidential records shall be subject to the provisions of [the Presidential Records Act] in the same manner as Presidential records.”); Armstrong v. Bush, 924 F.2d 282, 286 n.2 (D.C. Cir. 1991) (“The President, the Office of Vice President, and the components of the [Executive Office of the President] whose sole responsibility is to advise the President are subject to the [Presidential Records Act] and create ‘presidential records.’ The components of the EOP that have [FN11] statutory responsibility *** are subject to the [Federal Records Act] and create ‘federal records.”’). FN11. The Presidential Records Act is not the only statute that distinguishes between the Vice President and agencies. Another was invoked by the court in Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995). The D.C. Circuit determined that Congress did not consider the “Executive Residence” to be an “independent establishment” for purposes of Title VII of the Civil Rights Act of 1964. In doing so, the court looked to an unrelated statute, 3 U.S.C. § 112, which allows “[t]he head of any department, agency, or independent establishment” to detail employees to certain entities in the White House, including “the White House Office, the Executive Residence at the White House, [and] the Office of the Vice President.” See 43 F.3d at 1490. If the Executive Residence is not an “independent establishment” because those terms are placed in separate lists in § 112, it must also follow that the Office of the Vice President is not an “agency.” In this case, there is simply no “express statement by Congress” that includes the President or Vice President

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within title 31's definitions of “agency.” If anything, the General Accounting Office Act of 1980, which added the judicial-enforcement provisions to what is now § 716, indicates that the President and Vice President are excluded from the category of agency heads who are subject to judicial enforcement at the Comptroller General's behest. Section 102 of the Act, which added the judicial-enforcement provisions now codified in § 716, referred generically to the “records of any department or establishment.” General Accounting Office Act of 1980, Pub. L. No. 96-226, § 102, 94 Stat. 311, 312 (emphasis added). By contrast, the preceding section of the Act (section 101), which expanded GAO's authority to audit certain confidential accounts, referred three times to agencies and the President using the disjunctive. Twice it referred to “the approval, authorization, or certificate of the President of the United States or an official of an executive agency.” § 101, 94 Stat. 311. The third time it re[FN12] ferred to “the President or the head of the agency concerned.” Ibid. These references show clearly that Congress, at the precise moment when it adopted the judicial-enforcement provision invoked by plaintiff, knew how to include the President within a provision otherwise applicable to agency heads. Congress's failure to do the same thing in § 716's judicial-enforcement provision demonstrates that Congress did not intend for the President or Vice President to be included in that provision. See Brown v. Gardner, 513 U.S. 115, 120 (1994) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (internal quotation marks omitted)); accord Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438 (2002). FN12. These references are currently codified, as amended, at 31 U.S.C. § 3524(a)(1) (“the approval, authorization, or certificate of the President or an official of an executive agency”), and 31 U.S.C. § 3524(a)(2) (“the President or head of the agency”). In the face of this evidence that Congress did not intend to treat the President or Vice President as the “head of [an] agency” under § 716 - or at best was silent on the question - plaintiff asserts that § 716's “structure” “indicates that Congress envisioned that the Comptroller General could *** bring suit *** for records under the control of high-level officials at the White House.” Pl's. S.J. Mem. 51. He extrapolates that dubious proposition from the fact that some records may be exempted from the reach of judicial enforcement if they are related to activities designated by the President as foreign intelligence or counterintelligence activities, or if the President or Director of OMB certifies that they would fall within certain FOIA exemptions. See 31 U.S.C. § 716(d)(1)(A) and (C). But the fact that the President may prevent certain agency disclosures does not suggest a right to insist [FN13] on disclosures directly from the Office of the President or the Vice President. FN13. Of course, this provision has its own constitutional problems. To the extent this statute is construed to authorize a congressional agent to seek documents from the Executive (with no expenditure of political capital by the Congress as a whole) and allow the Executive to resist only if the President expends the political capital inherent in an assertion of privilege, it represents an improper effort by Congress to aggrandize itself at the expense of the Executive. Many traditional “agencies” have records related to foreign intelligence activities or records that fall within the relevant FOIA exemptions. Thus, § 716(d)(1)(C) shows only that Congress empowered the President or Director of OMB to stop an enforcement action by the Comptroller General against any agency for such records, not that the Office of the President or the Office of the Vice President was to be implicitly included among the agencies subject to the provision. In fact, as plaintiff has indicated, the certification procedure in § 716(d)(1)(C) was employed by the Clinton Administration in connection with the Comptroller General's attempt to obtain access to records of the Department of Defense and the Department of State. See Access to Executive Branch Records, [FN14] GAO-01-440R (Mar. 6, 2001) (Pl's. S.J. Mem. Ex. 6).

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FN14. This reasoning also explains why plaintiff over-reaches when he relies on the 1979 testimony of the Director of OMB. See Pl's. SJ. Mem. 54. Testifying on a version of the bill that did not yet include any exclusions in the judicial-enforcement provisions (i.e., no exclusion for records about foreign intelligence activities, nor any general exclusion for records exempted from disclosure to the Comptroller General by other statutes), the Director noted that the judicial-enforcement provisions “could potentially permit the Comptroller General to sue to compel the disclosure of the same documents which section 101 of H.R. 24 would deny him access to.” General Accounting Office Act of 1979: Hearing Before a Subcomm. of the House Comm. on Gov't Operations, 96th Cong., 1st Sess. 89, 110 (1979). Because section 101 of H.R. 24 expressly exempted “certain authorities of the Director of Central Intelligence *** for sensitive foreign intelligence and counter-intelligence activities,” as the Director of OMB pointed out (id. at 87, 104), his caution about the potentially broader scope of section 102 was well-taken, even without assuming that section 102 would apply to suits against the President. The only other evidence that plaintiff provides to demonstrate Congress's purported intent to reach the President or Vice President is contained in committee reports associated with the GAO Act of 1980. Of course, as an initial matter, those reports cannot satisfy Franklin's requirement of an “express statement.” On its face, Franklin requires “an express statement by Congress.” 505 U.S. at 801 (emphasis added). Needless to say, committee reports cannot satisfy this standard. See, e.g., FEC v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986) (“Congressmen typically vote on the language of a bill rather tha[n] on reports that accompany it” (emphasis in original, internal quotation marks omitted)). Moreover, abjuring reliance on committee reports is consistent with the manner in which the Supreme Court applies its clear-statement requirements. Unlike mere “interpretative presumption[s],” the Court's clear-statement requirements protect “weighty and constant values,” often constitutional ones. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 108-109 (1991) (citations omitted). When such requirements apply, “the unequivocal expression” that the Court has “insist[ed] upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report.” United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992) (emphases added, internal quotation marks omitted); see also EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 262-63 (1991) (Marshall, 1, dissenting) (noting that “[c]lear-statement rules,” like the one adopted by the majority in that case, do not operate “to reveal actual congressional intent,” rather they “foreclose inquiry into extrinsic guides to interpretation, and even compel courts to select less plausible candidates from within the range of permissible constructions” (emphasis added, internal citations omitted)). Thus, the statutory language is dispositive in demonstrating that plaintiff has not met his burden under Franklin of identifying an express statement by Congress. Yet, even if - contrary to precedent - the committee reports are considered here, they contain no express statement indicating an intent to include the Vice President within the definition of an agency. Plaintiff relies upon a single sentence in the Senate Report, which refers to “enforcement actions at the Presidential level” and the President's ability to avoid a suit against himself or his close advisers by exercising the certification power now contained in § 716(d)(1)(C). S. Rep. No. 96-570, at 8, reprinted in 1980 U.S.C.C.A.N. 732, 739. That reference, however, which merely assumes without expressly stating that the President is subject to a § 716 suit, is too opaque to satisfy Franklin. More importantly, it is inconsistent with the statutory text. The Senate Report states that the bill allows the President or Director of OMB to “preclude a suit *** for information which would not be available under the Freedom of Information Act.” S. Rep. No. 96-570, supra, at 8, reprinted in 1980 U.S.C.C.A.N. 739. Thus, the report says that the President can prevent the disclosure of records “which would not be available under [FOIA],” or, in other words, that the Comptroller General's access does not extend beyond what is allowed under FOIA.

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The Senate Report's description of the President's certification authority is inconsistent with the terms of the statute. The certification authority in § 716(d)(1)(C) contains no broad carve-out or per se exclusion for presidential advisers co-extensive with FOIA, as the Senate Report implies. Instead, the statute requires a determination (by the President or Director of OMB) that one of two specific FOIA exemptions (out of nine) would apply to the records and that “disclosure reasonably could be expected to impair substantially the operations of the Government.” 31 U.S.C. § 716(d)(1)(C). While not insubstantial, that certification power does not extend as far as the protections afforded by FOIA, and its exercise imposes a much higher administrative burden on the Executive than does FOIA. In 1980, as it does today, FOIA did not make available any documents from the President and his principal advisers and assistants; there was no need whatsoever to determine whether documents fell within individual exemptions, or how harmful disclosure might be. All of those records were simply off-limits under FOIA because presidential advisers were “not included within the term ‘agency’ under the FOIA.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980); see also Part III.A.2, below. [FN15] The Senate Report incorrectly suggests that the certification power prevents the judicial-enforcement power from being any broader than FOIA. That inconsistency with the statute renders the Senate Report especially unworthy of respect in attempting to establish an express congressional statement. See, e.g., Public Citizen v. Carlin, 184 F.3d 900, 904 (D.C. Cir. 1999), cert. denied, 529 U.S. 1003 (2000) ( “Legislative history may show the meaning of the texts *** but may not be used to show an ‘intent’ at variance with the meaning of the text.” (quoting In re Sinclair, 870 F.2d 1340, 1344 (7th Cir.1989)). In other words, because the Senate Report mischaracterizes the President's certification power, its apparent assumption that there can be “enforcement actions at the presidential level” should be given no credence. (Moreover, even if that sentence in the Senate Report is taken seriously, the only way to give practical effect to its conclusion that the Comptroller General's access to presidential-level documents is coextensive with FOIA is to exclude the President and Vice President [FN16] from the definition of “agency.” ) FN15. Kissinger was actually decided the week after the date of the Senate Report. But even before the release of the Kissinger opinion - which affirmed the district and appellate courts on this point - it was settled that presidential advisers were not considered agencies under FOIA. See, e.g, 1 KENNETH GULP DAVIS, ADMINISTRATIVE LAW TREATISE § 1.2, at 8 (2d ed. 1978). FN16. This is also consistent with the statutory distinction, discussed above, between “agency records,” which are subject to FOIA, and presidential and vice presidential records, which are not. Plaintiff also attempts to locate congressional intent to allow judicial-enforcement against the President and Vice President in the fact that the House and Senate Reports both reprint (in an appendix) GAO's own list of the difficulties it claimed to have had in gaining access to executive branch documents, including two examples involving entities within the Executive Office of the President. See Pl's. S.J. Mem. 52-53. Of course, those appendices, prepared by GAO, are even less convincing as an “express statement by Congress” than the actual committee reports (which were at least prepared by congressional staffers). The Senate Report itself neither discusses any examples of prior access problems, nor does it specifically endorse all of the examples in GAO's list. Nowhere does it indicate that the new provisions would have prevented each of the problems cited by GAO. See S. Rep. No. 96-570, supra, at 5, reprinted in 1980 U.S.C.C.A.N. 736. The House Report is even less helpful to plaintiff. Although it reprints GAO's list in an appendix, the only examples of access problems that the Committee actually describes involved the Department of Defense and the Department of State, not the White House. See H.R. Rep. No. 96-425, at 5 (1979). There is simply no clear statement of any congressional intent to include the President or Vice President among

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the agency heads to which § 716(b) applies. To the contrary, given the differences between sections 101 and 102 of the GAO Act of 1980, there are affirmative indications that Congress excluded them. The best that can be said for the Comptroller General's case is that the President and Vice President are “not explicitly excluded” nor “explicitly included”; but such “textual silence” led the Supreme Court to conclude in Franklin that the President is not an “authority of the Government of the United States.” 505 U.S. at 800. Under these circumstances, the Vice President cannot be considered an agency or an agency head subject to the judicial-enforcement provisions in § 716. 2. Entities whose “sole function is to advise and assist the President” are not “agencies” The same conclusion also follows from well-established interpretations of the term “agency” in other statutes dealing with access to records. As mentioned above, even when the judicial-enforcement provisions were added in 1980, it was clear that the definitions of “agency” under the APA and FOIA did not include the President's close advisers or entities whose sole function was to advise and assist the President. The definition of “agency” in title 31 is no broader than those used in the APA and FOIA. Furthermore, as relevant here, the sole function of the Vice President is to advise and assist the President (and the same was true for the NEPDG while it existed). Accordingly, for this independent reason, neither the Vice President nor the NEPDG can be considered to [FN17] be or to have been an “agency” under § 716. FN17. Plaintiff purports to sue the Vice President in part as the Chairman of the NEPDG, but the Vice President is always a constitutional officer, regardless of the “capacity” in which he is alleged to have acted. This means that Franklin applies to him regardless of how he is characterized by plaintiff. Moreover, as a matter of law, the NEPDG ceased to exist by September 30, 2001, several months before this lawsuit was filed (see Compl. Ex. A at 3 (Memorandum from the President directing that “[t]he Energy Policy Development Group shall terminate no later than the end of the fiscal year 2001”)), which would render moot any suit against the Vice President as Chairman of the NEPDG. Nevertheless, defendant discusses here why the NEPDG was not an “agency,” and thus why the Vice President could not have been the head of an agency by virtue of being Chairman of the NEPDG. As the Supreme Court explained just one month before the GAO Act of 1980 became law, telephone notes made by Henry Kissinger while he was serving as Assistant to the President were not “agency records” under FOIA. [FN18] Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). The FOIA defines “agency,” then and now, to include not only the APA's definition of “agency” (any “authority of the Government”) but also “any *** establishment in the executive branch of the Government (including the Executive Office of the President).” 5 U.S.C. §§ 551(1), 552(f)(1). In spite of that broad definition, the Court concluded that “the ‘Executive Office’ does not include the Office of the President,” and therefore that “‘the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President’ are not included within the term ‘agency’ under the FOIA.” Kissinger, 445 U.S. at 156 (quoting H.R. Conf. Rep. No. 93-1380, at 15 (1974)). FN18. This portion of the Court's opinion - which appeared in Part III - was unanimous. See Kissinger, 445 U.S. at 161 (Brennan, J., concurring in part and dissenting in part) (dissenting from Part II of the Court's opinion); id. at 162 n.3 (Stevens, J., concurring in part and dissenting in part) (“I agree with Part III of the Court's opinion that the summaries of Dr. Kissinger's telephone conversations when he was a Presidential adviser were not ‘agency records' ***.”).

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The D.C. Circuit has repeatedly applied this exception for presidential advisers to entities within the White House and the Executive Office of the President that advise and assist the President. For example, in Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993), the court considered an entity similar to the NEPDG. The plaintiff had brought a FOIA action against President Reagan's Task Force on Regulatory Relief, which was headed by thenVice President Bush and included certain cabinet members as well as the President's Assistant for Policy Planning. Id. at 1289. The court concluded that the task force was not an “agency” by focusing on “three interrelated factors”: “how close operationally the group is to the President, what the nature of its delegation from the President is, and whether it has a self-contained structure.” Id. at 1293. Ultimately, the court concluded that the task force primarily advised the President; because it did not “exercise substantial independent authority,” its members - including the cabinet officers - “were acting, in truth, just as would senior White House staffers.” Id. at 1297. In other cases, the D.C. Circuit has determined that the National Security Council and the Counsel to the President are not agencies under FOIA. See Armstrong, 90 F.3d at 565 (National Security Council); National Sec. Archive v. Archivist of the United States, 909 F.2d 541, 545 (D.C. Cir. 1990) (Counsel to the President). More recently, this Court has concluded that the logic that excludes the President and his staff from the definition of “agency” necessarily excludes the Vice President and his staff as well: Offices within the White House whose functions are limited to advising and assisting the President do not come within the definition of an ‘agency’ within the meaning of FOIA or the Privacy Act. This includes the Office of the President (and by analogy the Office of the Vice President) and undoubtedly the President and Vice President themselves. Schwartz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000), aff'd, 2001 WL 674636 (D.C. Cir. 2001). Several other decisions have applied the presidential-adviser exception to the Government in [FN19] the Sunshine Act or the Privacy Act, both of which borrow FOIA's definition of “agency.” FN19. See Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1043 (D.C. Cir. 1985); Dale v. Executive Office of the President, 164 F. Supp. 2d 22, 25-26 (D.D.C. 2001); Tripp v. Executive Office of the President, 200 F.R.D. 140, 143-146 (D.D.C. 2001); Broaddrick v. Executive Office of the President, 139 F. Supp. 2d 55, 58-60 (D.D.C. 2001); Sculimbrene v. Reno, 158 F. Supp. 2d 26, 29-35 (D.D.C. 2001); Falwell v. Executive Office of the President, 113 F. Supp. 2d 967, 970 (W.D. Va. 2000): but see Alexander v. FBI, 971 F. Supp. 603, 606-607 (D.D.C. 1997). The term “agency” in § 716 (which does not expressly refer to “the Executive Office of the President”) should, a fortiori, be read to incorporate the same exemption for presidential advisers. The GAO Act of 1980 referred to the “records of any department or establishment.” Pub. L. No. 96-226, § 102, 94 Stat. 311, 312 (1980). The current version speaks simply of “agency,” which is defined as “a department, agency, or instrumentality of the United States Government.” 31 U.S.C. § 716(b); id. § 101. When applied within the Executive Branch, those references are, if anything, less inclusive than FOIA's definition of “agency,” which includes any “authority of the Government” and “any executive department *** or other establishment in the executive branch of the Government (including the Executive Office of the President).” 5 U.S.C. §§ 551(1), 552(f)(1). In this case, the sole function of the Vice President and the NEPDG was to advise and assist the President. Of course, as Congress has recognized, that is the Vice President's general function (aside from his duties as President of the Senate). By statute, the Vice President is authorized to appoint and pay staff members in order to en-

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able him “to provide assistance to the President in connection with the performance of functions specially assigned to the Vice President by the President in the discharge of executive duties and responsibilities.” 3 U.S.C. § 106(a). There can be no doubt here that the Vice President was acting solely “to provide assistance to the President.” The three-part test set forth in Meyer makes clear that the Vice President and task force here, just like the Vice President and task force there, do not qualify as agencies. First, the NEPDG was “close operationally *** to the President.” 981 F.2d at 1293. Like the Task Force on Regulatory Relief in Meyer, the NEPDG included the Vice President, several cabinet members, and members of the President's personal staff. See 981 F.2d at 1289 (identifying task force members); Compl. Ex. A ¶ 1 at 1-2 (identifying NEPDG members). In addition, the NEPDG reported directly to the President. See Compl. Ex. A. ¶¶ 2-3 at 2. Second, the President did not delegate “substantial independent authority” to the NEPDG. 981 F.2d at 1297. If anything, the NEPDG had even less independent authority than the task force in Meyer, which not only advised the President but also provided “‘guidance’ and ‘direction’ to the OMB Director” and possessed “authority to resolve disputes between agencies and OMB.” 981 F.2d at 1294. By contrast, the NEPDG's only functions were to “develop a national energy policy” by “gather[ing] information, deliberat[ing], and *** mak[ing] recommenda[FN20] tions to the President.” Compl. Ex. A ¶ 2 at 2. As the D.C. Circuit has subsequently explained, the “authority to make policy recommendations for approval by the President” is a “quintessentially advisory” function, and demonstrates a lack of substantial independent authority under the Meyer test. Armstrong, 90 F.3d at 561; see also Rushforth v. Council of Econ. Advisers, 762 F.2d 1038, 1041 (D.C. Cir. 1985) (contrasting the ability to “take direct action” with providing “advice and assistance”). FN20. It is appropriate to evaluate the NEPDG's role on the basis of the presidential memorandum that established it. See Meyer, 981 F.2d at 1294 (calling the Executive Order that established the task force “the most important indication of the Task Force's role”). Third, the NEPDG did not have a “self-contained structure.” 981 F.2d at 1293. Like the task force in Meyer, it was akin to “a partial cabinet group,” which “operated out of the Vice President's office *** borrowing [staff]” from an agency. Id. at 1296; see Def's. Response to Pl's. Statement of Material Facts ¶ 5 (describing NEPDG staff). In addition, because the NEPDG included among its members the “Assistant to the President and Deputy Chief of Staff for Policy, [the] Assistant to the President for Economic Policy, and [the] Assistant to the President for Intergovernmental Affairs” (Compl. Ex. A. ¶ 1 at 1-2), it was obviously “intertwine[d] *** with the President's immediate personal staff,” rather than self-contained. Armstrong, 90 F.3d at 560. Because the Vice President, the OVP, and NEPDG are neither agencies nor agency heads, § 716 is inapplicable here. Not only is there no legal obligation to provide access to records under § 716(a), but there is no cause of action granted by § 716(b). Without a cause of action, the Comptroller General has failed to state a claim upon which this Court can grant relief. Thus, under Rule 12(b)(6), this Court can - and should - dismiss the Complaint for that reason alone, without the need to reach any of the other statutory or constitutional arguments discussed below. B. Section 712 does not apply because the Comptroller General is not investigating the use of public money Plaintiff's self-aggrandizing method of interpreting his authorizing statute continues with respect to 31 U.S.C. § 712, which provides the first substantive ground for his asserted right to access NEPDG records. Under that sec-

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tion, the Comptroller General is given the power to “investigate all matters related to the receipt, disbursement, and use of public money.” There were, of course, certain NEPDG activities that were related to the disbursement or use of public money (see Def's. Response to Pl's. Statement of Material Facts ¶ 7), and the Vice President has already, as a matter of comity, furnished the Comptroller General with documents pertaining to the NEPDG's costs. See id. at ¶¶ 16-17; Compl. ¶ 23. Plaintiff, however, would turn § 712(1) into a “sweeping” clause of all-encompassing power. Pl's. S.J. Mem. 3. Few things even tangentially associated with the federal government would elude his jurisdictional mandate. No minute of any federal employee's day - from the President on down - would be beyond his searching gaze, because he literally equates time with money: He claims authority “to determine how time, and therefore money, was spent.” Pl's. SJ. Mem. 26. He claims the need to know, and the authority to learn, everything about meetings and even the planning processes for them - not just who attended (id. at 25), but also what “subjects [were] discussed at the meetings held by the Vice President” (ibid.), “how many meetings were focused on one subject versus another” (id. at 26), and even how the Vice President and his staff decided who would be invited (id. at 25). All of those details are supposed to provide Congress with the information necessary to determine “whether the NEPDG spent public funds for meetings efficiently and effectively.” Id. at 26. Of course, it strains the bounds of credibility to assert that the 1921 Congress, which adopted the predecessor to § 712(1) focused on the need to audit the federal spending process, contemplated any need, let alone authority, to so micromanage the Executive - or, for that matter, to treat the Judiciary the same way merely because it also “use[s] *** public money.” Plaintiff's reading of § 712(1) is untenable for three principal reasons. First, it would render superfluous several subsequent grants of authority to the Comptroller General. If the power to investigate “all matters related to the *** use of public money” were as unbounded as plaintiff contends, there would have been no need, for example, for Congress to have fifty years later added § 717(b) to grant the power plaintiff invokes to evaluate the results of federal programs. Indeed, in addition to rendering superfluous other sources of authority to investigate the government, plaintiff's reading would also render nugatory the procedural and substantive limits contained in those other sources, since § 712(1) could always be used to achieve what would not be permitted under another statutory provision. Plaintiff himself, moreover, describes the enactment of § 717(b) as an “expanded mandate” that required GAO to develop new areas of “expertise beyond auditing and accounting.” Pl's. S.J. Mem. 12. Second, the very breadth of plaintiff's view of his own authority would create obvious constitutional difficulties in many circumstances. Congress's powers to investigate are not limitless. Congress “cannot inquire into matters which are within the exclusive province of one of the other branches of the Government” (Barenblatt v. United States, 360 U.S. 109, 112 (1959); see also Part IV.A, below), and it is inconceivable that Congress could expand its power by delegating it to an agent. Yet it is difficult to conceive of a matter within the “exclusive province of one of the other branches of the Government” that would not be “related to the *** use of public money” in the sense that plaintiff construes that phrase. 360 U.S. at 112. Third, plaintiff's reading of § 712(1) ignores canons of statutory construction that would counsel in favor of a reading that would avoid the first two problems. The statute refers to “matters related to the receipt disbursement and use of public money.” 31 U.S.C. § 712(1) (emphasis added). The three related terms “receipt, disbursement, and use” should be read together, and the apparently broad concluding term “use” should be read as limited to the class addressed by “receipt” and “disbursement.” “Under the principle of ejusdem generis, when a general term follows a specific one, the general term should be understood as a reference to subjects akin to the one with specific enumeration.” Norfolk & Western R.R. v. Train Dispatchers, 499 U.S. 117, 129 (1991); see

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also Bazuave v. United States, 83 F.3d 482, 484 (D.C. Cir. 1996) (following both the ejusdem generis and noscitur a sociis canons to limit the meaning of “any other law enforcement officer”). The word “use” must be read as coming from the same vein as the other two fiscal and accounting terms: “receipt” and “disbursement.” This explains why, despite having had § 712(1) authority for decades, GAO's expertise before 1970 was focused in “auditing and accounting” (Pl's. S.J. Mem. 12) and a 1949 congressional summary had emphasized GAO's role in securing “necessary information concerning the financial transactions of the Government,” The General Accounting Office: A Study of Its Functions and Operations, H.R. Rep. No. 81-1441 at 6 (1949) (emphasis added). In order to avoid creating severe statutory problems (by rendering nugatory GAO's other sources of authority to investigate the government), and constitutional problems (by expanding GAO's investigative powers beyond those available to Congress itself), this Court should reject plaintiff's untethered reading of § 712(1), and recognize that GAO's powers under that provision pertain only to financial transactions. C. Section 717(b) does not apply because the Comptroller General is not evaluating the “results of a program or activity the Government carries out under existing law,” and because the procedural prerequisites for a § 717(b) evaluation have not been met As a general proposition, Congress has the power of inquiry only in aid in its exercise of its legislative power. See Barenblatt, 360 U.S. at 111-112. It has purported to delegate part of its power of inquiry by statute to the Comptroller General. As the Comptroller General acknowledges, his investigative powers were expanded when, in 1970 and 1974, Congress directed him to “evaluate the results of a program or activity the Government carries out under existing law.” 31 U.S.C. § 717(b) (emphasis added). GAO's investigation in this case goes far beyond the limits of that statutory authorization because (1) a “program or activity *** under existing law” refers only to programs authorized by Congress and does not include the Executive's exercise of constitutional functions; (2) GAO is attempting to investigate the process by which the NEPDG developed its recommendations rather than the “ results ” of that process; (3) the NEPDG is not included in § 717(b)'s reference to “Government” for the same reasons that it is not included within § 716's references to “agency”; and (4) GAO's inquiry was not requested by a committee or conducted on the initiative of the Comptroller General, as § 717(b) requires. 1. The NEPDG did not engage in a “program or activity *** under existing law” The Comptroller General's authority to conduct evaluations under § 717 does not extend to any governmental program or activity, but only to those that are “carrie[d] out under existing law.” 31 U.S.C. § 717(b). In the context of the statutory scheme, this is evidently part of Congress's attempt to determine whether the programs and activities it has established by statute are achieving Congress's goals. But the NEPDG was not created pursuant to any statutory program, and it did not attempt to achieve any results intended by Congress. Instead, it was established by the President, pursuant to his Article II powers, including his powers to obtain opinions from the principal officers in the Executive Branch and to recommend for the consideration of Congress such measures as he judges “necessary and expedient.” U.S. CONST. art II, § 2, cl. 2; id. art. II § 3. Indeed, the NEPDG's mission of formulating policy recommendations to the President, including proposals for new legislation, is the antithesis of Congress's concern with measuring the success of existing programs or activities. Taken in context, the phrase “under existing law” refers to statutory law. The limitation to statutory programs is implicit in the fact that evaluations done at the request of a congressional committee are limited to those instances where the committee has “jurisdiction over the program or activity.” Id. § 717(b)(3). Moreover, the le-

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gislative history of § 717(b) unambiguously shows that the Comptroller General's authority to conduct programresults evaluations was limited to programs created by Congress, and GAO itself has repeatedly characterized its power in precisely that way. The first general incarnation of § 717's program-results evaluations appeared in the Legislative Reorganization [FN21] Act of 1970 (1970 Act), which was largely directed at improving Congress's ability to review executive branch implementation of congressionally-created programs. Thus, the House Report described the new “extension[]” of GAO's work in a section entitled “Oversight and Program Analysis Assistance to the Congress,” and said GAO's new non-audit responsibilities were intended to assist Congress in “determining whether existing programs are being administered in accordance with congressional intent” and in “exploring the advisability of modifying or even of abolishing such programs.” H.R. Rep No. 91-1215, supra, at 17-18, reprinted in 1970 U.S.C.C.A.N. 4417, 4432-4433 (emphases added). These goals underscore that GAO's reviews were to be limited to statutory programs, not constitutional provisions; Congress, of course, lacks authority to “modify[]” or “abolish []” the President's constitutional functions, and thus would not need GAO's assistance in “overseeing” those functions. FN21. As plaintiff notes, even before 1970, GAO had conducted program-results reviews when Congress had specifically authorized them by statute. As GAO's in-house history program has explained: “As a result of 1967 legislation, GAO began to evaluate government programs, specifically the poverty programs.” Roger R. Trask, GAO History Program, GAO History 1921-1991, GAO/OP-3-HP at 61 (Feb. 1991). “The poverty programs work between 1967 and 1969 *** demonstrated GAO's qualifications to do program evaluation and was a dress rehearsal for the major thrust of GAO reporting in the 1970s.” Id. at 63; see also id. at 90 (“with the effort on the poverty programs between 1967 and 1969, GAO moved into program evaluation”); Staff of the Senate Comm. on Governmental Affairs, 103d Cong., 2d Sess., The Roles, Mission and Operation of the U.S. General Accounting Office, 3 (Comm. Print 1994) (National Academy of Public Admin.) (“in the 1960's *** GAO developed a new role in evaluating government programs, beginning with an 18-month evaluation of economic opportunity programs that Congress mandated in 1967”). Obviously, this precursor of § 717(b) authority was a review of previously enacted statutory laws. The 1970 Act also expanded the responsibilities of congressional committees. In describing those new responsibilities (which were among those that GAO's new powers were supposed to aid), the House Report makes clear that references to “laws” meant only “statutory laws”: [E]ach Senate standing committee shall review and study *** the application, administration, and execution of those laws, or parts of laws, the subject matter of which is within the jurisdiction of that committee. The stated purposes of these reviews and studies is to assist the Senate in its analysis, appraisal, and evaluation of the application, administration, and execution, of the laws enacted by the Congress and in the formulation, consideration, and enactment by the Senate of such modifications of, or changes in, those laws, and of such additional legislation, as may be necessary or appropriate. H.R. Rep No. 91-1215 at 72-73, reprinted in 1970 U.S.C.C.A.N. 4491 (emphases added); see also id. at 73-74, reprinted in 1970 U.S.C.C.A.N. 4492 (substantively identical discussion about House standing committees). Just as in the descriptions of congressional committees' legislative-review functions, the reference in § 717(b)(3) to requests for GAO from committees “with jurisdiction over the program or activity” should be understood as referring only to programs carried out under the “laws enacted by the Congress.”

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Several of the Comptroller General's own contemporaneous descriptions of the potential new program-results authority evinced this same understanding, and stand in stark contrast to the virtually unbounded authority he now claims before this Court. Comptroller General Staats, for example, explained that § 717(b) would clarify GAO's “charter to review and evaluate Federal and federally assisted programs as to whether these programs are being carried out as intended by the Congress. In other words, [the statute would allow GAO to determine] whether programs are achieving congressionally stated objectives in the most effective manner and at the lowest cost.” Letter from Comptroller General Elmer B. Staats to Rep. B.F. Sisk (Oct. 31, 1969) (Pl's. S.J. Mem. Ex. 7) [FN22] (emphases added). FN22. GAO repeated the express reference to congressional objectives in its in-house Comprehensive Audit Manual, which described the purpose of program-results reviews as to “evaluate whether desired results or benefits of agency programs and activities are being achieved and whether the objectives established by the Congress are being met.” Quoted in FREDERICK C. MOSHER, THE GAO: THE QUEST FOR ACCOUNTABILITY IN AMERICAN GOVERNMENT 177 (1979) (emphasis added). Later, in 1975 congressional testimony, Comptroller General Staats explained that “program evaluation and analysis” determined “whether programs are achieving the results which the Congress envisioned in enacting legislation.” Review of the Powers, Procedures, and Policies of the GAO: Hearing Before a Subcomm. of the House Comm. on Gov't Operations, 94th Cong., 1st Sess. 4 (1975) (emphasis added); see also id. at 28 (“we are trying to see if the objectives of the statutes have been carried out effectively, and if not, why not” (emphasis added)). Indeed, as plaintiff notes (Pl's. S.J. Mem. 36), even Comptroller General Staats's 1969 testimony described the first question posed by a review of program results as follows: “Is the program accomplishing the results intended as spelled out in the legislative objectives or through implementing directives of the executive branch agency and within the costs anticipated at the time the legislation was enacted?” Capability of GAO to Analyze and Audit Defense Expenditures: Hearings Before the Subcomm. of the Senate Comm. on Gov't Operations, 91st Cong., 1st Sess. 33 (1969) (GAO 1969 Hearing) (emphasis added). The reference to “implementing directives of the executive branch agency” obviously does not contemplate the Executive's constitutional functions. Thus, the legislative history of § 717(b) and the contemporaneous statements of the Comptroller General recognized that program-results evaluations were intended to measure programs against benchmarks established by Congress - and therefore could not be intended to apply to the Executive's formulation of new proposals or exer[FN23] cise of independent constitutional functions, which Congress cannot regulate. That understanding, moreover, comports with the long-recognized distinction between the statutory and constitutional functions of the Executive. In Marbury v. Madison, for example, Chief Justice Marshall's opinion for the Court distinguished between “cases in which the executive possesses a constitutional *** discretion” and those where “the legislature proceeds to impose on that officer other duties.” 5 U.S. (1 Cranch) 137, 166 (1803); cf. Dalton v. Specter, 511 U.S. 462, 474 (1994) (explaining the “recognized” “distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other”). [FN24] FN23. Plaintiff implausibly purports to find an unexpressed intent by Congress to extend program-results evaluations to the discharge of the Executive's constitutional functions in a two-paragraph summary of a single GAO study - a 1969 review of a 1963 National Security Action Memorandum establishing a National Communications System (NCS) - that was included in a 67-page appendix to a statement Comptroller General Staats provided a Senate subcommittee. See Pl's. S.J. Mem. 43-44 (citing GAO 1969 Hearing 81). Of course, that slight reference could not have worked such a dramatic transforma-

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tion in the statute's scope, especially in light of the numerous contrary subsequent characterizations of § 717(b) by committee reports and by Comptroller General Staats himself. Moreover, GAO's limited study, whatever the propriety of GAO's conducting it under its authority at the time, merely evaluated whether the National Security Adviser's 1963 directives had been achieved; it did not evaluate the advisory efforts by three separate groups to develop those directives. See Pl's. SJ. Mem. Ex. 5 at 10-11 (describing Emergency Planning Committee, task group, and NSC subcommittee on communications). Therefore, that precedent cannot support GAO's attempt to evaluate the process by which the NEPDG developed its advisory recommendations. As its name clearly stated, the National Energy Policy Development Group existed to develop policy and advise the President, not to “carr[y] out” that policy. FN24. The evidence of congressional intent specific to § 717(b) defeats plaintiff's attempts to support his expansive interpretation of the term “existing laws.” The fact that the term “law” often includes, for example, the common law (Pl's. S.J. Mem. 41 n.21) is unremarkable, since common law persists only to the extent that the legislature does not supplant it with legislation. Similarly, the fact that the Constitution is law under the Supremacy Clause or Rule 11 (id. at 41) is inapposite, since those provisions are not directed exclusively at areas over which Congress may inquire in aid of its legislative power. Of course, plaintiff's attempt to define “existing law” in § 717 by reference to uses of that phrase in other contexts is fundamentally misguided. Needless to say, there are many instances in the United States Code where the phrase “existing law” patently means only statutory law. See, e.g., 36 U.S.C. § 2103(c) (excepting American Battle Monuments Commission from “the requirements of existing laws or regulations” for purposes of contracting); 40 U.S.C. § 806 (repealing “[a]ll existing laws or parts of laws inconsistent with the provisions of this chapter”); 31 U.S.C. § 1105(a)(16) (requiring budget to include “the level of tax expenditures under existing law in the tax expenditures budget *** for the fiscal year for which the budget is submitted”). The NEPDG was not created pursuant to any statutory program, and it did not attempt to achieve any results intended by Congress. Instead, it was established by the President, pursuant to his Article II powers, including his powers to seek opinions from his principal officers and to recommend measures that he judges “necessary and expedient” for consideration by Congress. U.S. CONST,.art II, § 2, cl. 2; id. art. II § 3. The NEPDG's sole mission was to make policy recommendations to the President, not to “carr [y] out” any “program or activity” authorized by statute. It thus falls clearly outside the scope of the authority granted by § 717(b) to conduct program-results evaluations. There is simply no truth to plaintiff's claim that the NEPDG “necessarily carried out activities under a variety of statutes.” Pl's. S.J. Mem. 45. Even if any of the NEPDG's recommendations related to the President's own duties under LIHEAP or other statutory programs, the recommendations still came in response to the President's constitutional authority to request them, and were therefore not subject to the usual statutory limitations on agency behavior. See, e.g., Alaska v. Carter, 462 F. Supp. 1155, 1160 (D. Alaska 1978) (invoking constitutional doubt doctrine to “hold[] that any recommendations by the Secretary of Interior on the exercise of the President's powers under the Antiquities Act, which recommendations have been requested by the President, do not come under the NEPA impact statement process [which would otherwise apply to Secretary of Interior]”). Nor is there any evidence that the NEPDG's report took the place of the Energy Secretary's annual report on the Strategic Petroleum Reserve (see Pl's. S.J. Mem. 46), or any other independent statutory obligation. 2. GAO is not evaluating the “results” of a program or activity

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Even assuming that the NEPDG somehow carried out a program or activity under existing law (which it did not), § 717(b) only gives GAO authority to “evaluate the results of” that program or activity. 31 U.S.C. § 717(b) (emphasis added). In this case, however, GAO seeks to evaluate the process by which the NEPDG developed its recommendations rather than the results of that process. The noun “result” means “the outcome of the deliberations of a council or assembly,” or “[t]he effect, consequence, issue, or outcome of some action, process, design, etc.” 13 OXFORD ENGLISH DICT. 761 (2d ed. 1989). It thus necessarily rests on the contrast between an outcome and the process by which it was produced. In this case, it is obvious that the “results” of the NEPDG's work were “the outcome of [its] deliberations” (i.e., its actual report). Indeed, plaintiff himself admits that an activity's “results” are its “consequences, effects, or conclusions.” Pl's. S.J. Mem. 32 (internal quotation marks and alterations omitted). Yet, he attempts to deprive the term “results” of any function in § 717(b) by asserting that “an inquiry into the NEPDG's processes is necessary [FN25] to any evaluation of the results of the NEPDG's activities.” Pl's. SJ. Mem. 34. FN25. Plaintiff's attempt to claim that a “result” includes the “process” that leads to or culminates in that result illogically and unnecessarily conflates two words that are defined - even in plaintiff's dictionary - in relation to each other. See WEBSTER's THIRD NEW INT'L DICT. 1808 (1993) (defining “process” as a “progressively continuing operation that consists of a series of controlled actions or movements systematically directed toward a particular result or end” (emphasis added)); see also 12 OXFORD ENGLISH DICT. 546 (defining “process” as “[a] continuous and regular action or succession of actions, taking place or carried on in a definite manner, and leading to the accomplishment of some result” (emphasis added)). Plaintiff, however, would (plausibly) claim precisely the same power if the statute omitted any reference to results and instead read “[t]he Comptroller General shall evaluate a program or activity the Government carries out.” This Court should refuse to adopt a construction that would render utterly superfluous the statutory phrase “the results of.” See Duncan v. Walker, 533 U.S. 167, 174 (2001). Moreover, contrary to plaintiff's assertion, a result or outcome can be evaluated independent of the process by which it was achieved. Proposals like the ones contained in the NEPDG's final report have their own value as policy ideas, and can be meaningfully evaluated on their own terms. Plaintiff's attempt to pretend otherwise is the equivalent of saying that a reviewer cannot comment on the merits of a book or a judicial opinion without being able to analyze the author's word-processing software, work schedule, and sources of inspiration - as well [FN26] as all of the rough drafts that preceded the published product. GAO's own history belies that attempt. The Comptroller General's conflation of results and process also creates needless friction between the Legislative and Executive Branches. Although the results of a deliberative process may reflect that process and lead to a claim of privilege, the legislative intrusion into the deliberative process itself inevitably creates the prospect of privilege assertions and inter-branch conflict. FN26. As plaintiff points out (Pl's. S.J. Mem. 15-16), in 1993, GAO evaluated the recommendations of the National Performance Review (Vice President Gore's task force to reform government management). GAO's nearly-300-page interim report provided its “initial comments” on the National Performance Review's major recommendations. Although the report noted whether or not GAO agreed with each recommendation, it was “primarily based on [GAO's previously] issued reports and testimonies,” rather than on any analysis of the processes pursued by the National Performance Review in developing its recommendations. Management Reform: GAO's Comments on the National Performance Review's

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Recommendations, GAO/OCG-94-1 at 1, 5-7 (Dec. 3, 1993). Notably, plaintiff's misguided attempt to treat “results” as if it meant “process” provides the alleged foundation for this lawsuit. The Comptroller General began his July 18, 2001 “statutory ‘demand letter”’ (Compl. ¶ 29) by saying that GAO was “reviewing the process by which the National Energy Policy was developed.” Compl. Ex. I at 1 (emphasis added). Similarly, in his August 17, 2001 report purportedly made under § 716, the Comptroller General explained that he was seeking “records relat[ed] to the process by which the National Energy P1olicy was developed.” Compl. Ex. K at 1 (emphasis added). Because that purpose for the investigation was not authorized by the plain statutory language of § 717(b), this suit must be dismissed. 3. As presidential advisers, the Vice President and the NEPDG should not be presumed to fall within § 717(b) 's generic reference to “Government” As discussed above, in Part III.A.1, it is established that the President or Vice President should not be assumed to be an “authority of the Government” unless Congress expressly states otherwise. Franklin, 505 U.S. at 800. For the same reasons, the term “Government” in § 717(b) should not be read to encompass the President or Vice President absent an express statement by Congress to the contrary. No such express statement exists in § 717. [FN27] FN27. Even though Franklin's express-statement requirement is grounded in separation-of-powers concerns, it obviously applies to the exercise of statutory as well as constitutional functions by the President or Vice President. See 505 U.S. at 801 (“We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed” as agency action (emphasis added)). Similarly, as described above, in Part III.A.2, when the term “agency” includes “any authority of the Government,” it is construed so as not to apply to presidential advisers. Thus, the undefined term “Government” in § 717(b) should not be assumed to incorporate those entities within the White House whose sole function is to advise and assist the President, and § 717(b) should not be read to apply to the Vice President or the NEPDG, because they did nothing but give advice to the President. 4. The procedural prerequisites of § 717(b) have not been met because GAO's evaluation was not requested by a committee or conducted on the initiative of the Comptroller General Under § 717, the Comptroller General may conduct a program-results evaluation only at the request or order of a “House” or “committee of Congress,” or “on the initiative of the Comptroller General.” 31 U.S.C. § 717(b)(1)(3). Here, however, none of those preconditions has occurred. As GAO's General Counsel explained in his June 1, 2001 letter to the Vice President's Counsel, GAO concluded that its “review of the development of the National Energy Policy is *** required by law ” because it was “requested by a congressional committee of jurisdiction.” Compl. Ex. G at 1 (emphasis added). In other words, the Comptroller General did not decide to initiate this evaluation. Rather, GAO's Assistant Director for Natural Resources and Environment “supervised the opening of GAO's investigation into the NEPDG” pursuant to her understanding of GAO's Congressional Protocols. 04/08/02 Decl. of Margaret J. Reese ¶ 2 (Pl's. S.J. Mem. Ex. 1). But those protocols incorrectly declare that GAO “has a statutory obligation to fulfill requests” from “committee leaders,” which it defines improperly as “those from the committee or subcommittee Chair, Ranking Minority Member (Ranking Member), *** on a program or activity within the committee's jurisdiction.” GAO's

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Congressional Protocols, GAO-01-145G at 4, 5 (Nov. 2000). Treating ranking minority members as the equivalent of a “committee of Congress” misconstrues the statute and ignores the democratic foundations and practical realities of Congress. Belatedly recognizing that a request by ranking minority members does not in fact trigger a statutory obligation to conduct an evaluation, plaintiff now portrays GAO's Congressional Protocols as the means by which he had “channel[ed]” the discretion available to him under § 717(b)(1). Pl's. SJ. Mem. 39. Read properly, however, § 717(b)(1) requires at a minimum the Comptroller General to exercise his discretion in a particular instance to initiate an evaluation; it should not allow him simply to rely on a generic policy of treating all requests from ranking minority members as triggering a statutory obligation. Such a policy would contravene Congress's express decision to trigger an automatic investigation only at the request of a majority of a committee or House, and it would be inconsistent with the prin[FN28] ciples of standing and equitable discretion discussed above. FN28. Moreover, any attempt by the Comptroller General to institute such a suit on his own discretion, without any particular request or authorization from Congress, would only exacerbate those standing and equitable discretion problems. Where, as here, the Comptroller General asks the judiciary to intervene in a dispute between the two political branches, his failure to exercise his own discretion personally to initiate an investigation may not be dismissed as a kind of harmless error. As described above, in Part II, courts are particularly wary of intervening in such disputes before it is clear that they are truly intractable and that the issue is joined at the highest levels within each branch. For similar reasons, Congress imposed an exhaustion requirement on the Comptroller General when it gave him the power to initiate a civil suit under § 716(b). The drafters of § 716 recognized that any judicial-enforcement action should be taken only as a “remedy of last resort.” General Accounting Office Act of 1979: Hearing Before a Subcomm. of the House Comm. on Gov't Operations, 96th Cong., 1st Sess. 96 (1979) (Rep. Horton); see also Pl's. S.J. Mem. 13 (recognizing that Comptroller General can pursue judicial enforce[FN29] ment “only after exhausting a set of detailed procedures”). FN29. This exhaustion requirement refutes plaintiff's attempt to assert that this question is “moot” now that four Senate Committee Chairman have expressed their support for “continu[ing] the ongoing investigation.” Pl's. S.J. Mem. 39 n.20; Compl. Ex. P. The Comptroller General's “statutory ‘demand letter”’ (Compl. ¶ 29) was written on July 18, 2001. The purposes of the exhaustion requirement obviously could not be served if the investigation purportedly justifying the July 18, 2001 letter did not become legitimate until the Senate Chairmen wrote their letter on January 22, 2002. Thus, even assuming that Congress possesses the power to bring a lawsuit against the President or the Vice President and delegated that power to its agent, the Comptroller General (which is not the case), the courts should refrain from hearing such a dispute where, as here, Congress's designated agent has not even followed the minimal procedures that Congress contemplated. Here, a GAO staff member initiated an investigation under the erroneous impression that it was “required by law” under § 717(b)(3). There was thus no “decision” as such, but merely a check to see whether the request had come from ranking minority members on a committee of jurisdiction. Of course, once that action was taken, the Comptroller General's own discretion was permanently compromised. He was no longer able to exercise his independent judgment to determine whether to initiate an evaluation, because doing so would second-guess the automatic, but already public, “decision” his staff had made to investigate the NEPDG. Under the circumstances, it would defeat the purpose of the carefully calibrated exhaustion scheme in § 716 to allow this lawsuit to proceed on the basis of an investigation with such a tainted origin.

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IV. The Statutory Provisions Plaintiff Invokes Would Be Unconstitutional If Applied to Authorize GAO's Investigation of the NEPDG and the Filing of This Lawsuit Even assuming that § 712(1) or § 717(b) grants, as a matter of statutory construction, the broad investigative powers that the Comptroller General claims (which they do not), and that such an authority is judicially enforceable under § 716 (which it is not), the exercise of those powers against the Executive in the circumstances of this case would violate well-established separation-of-powers principles. The NEPDG functioned pursuant to the President's express Article II powers, including his powers to seek opinions from principal officers in executive departments (art. II, § 2, cl. 1) and to “recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient” (art. II, § 3). Therefore, Congress is barred from encroaching upon or interfering with the exercise of those functions through a non-textual and delegated investigatory authority. This result is true whether this Court analyzes the question under the per se test applicable to the exercise of express Article II [FN30] powers, or under the balancing test that has been applied in the context of implied executive powers. FN30. In Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) (AAPS), the D.C. Circuit considered constitutional concerns arising from interference with the President's ability to seek advice from his “closest advisers.” Id. at 910. The court's ultimate holding was one of statutory construction, but it looked to constitutional concerns before it applied the canon of constitutional avoidance to its statutory analysis. The government urged a per se test based on the Recommendations Clause. In its inconclusive discussion of constitutional concerns, the court declared the government's focus on the Recommendations Clause to be “somewhat artificial,” and instead found “more persuasive” the notion that constitutional concerns were raised by the “operational proximity to the President himself of the Task Force on National Health Care Policy. Id. at 908-909. Thus, the court's discussion, rather than resting on a per se test, focused on a balancing test. Defendant discusses both forms of analysis below. A second constitutional problem would be created if § 716(b) were interpreted to provide the Comptroller General the authority to file this lawsuit against the Vice President: The Constitution does not countenance the spectacle of having a legislative agent exercise executive powers by filing a civil enforcement action against the Executive. A. The NEPDG's information-gathering and policy-developing activities for the President are within his exclusive enumerated responsibilities under Article II and are beyond Congress's investigative and legislative powers Article II, section 1 of the Constitution vests “[t]he executive Power” in the President of the United States. In order to fulfill his executive duties, the President must be able to deliberate with his advisers and to obtain information. Both the Opinion Clause and the Recommendations Clause reflect this need and provide textual foundations for the President's powers to gather information and develop policy - and both clauses also show that those executive powers are not subject to interference from Congress. During the Constitutional Convention of 1787, the Framers considered several times whether to provide the President with some form of advisory council that included representatives of the Legislature or Judiciary. See JAMES MADISON, NOTES OF THE DEBATES IN THE FEDERAL CONVENTION OF 1787 at 487-488, 509-510, 569, 598-602 (W.W. Norton & Co. 1966) (debates of Aug. 20, 22, and 31 and Sept. 7, 1787). They rejected each of those proposals, and chose instead to enshrine in Article II the President's power to seek advice

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from those under his direct control. As Alexander Hamilton subsequently explained, the unity of the Executive would be destroyed if the President were “subject[ed] in whole or in part to the controul and cooperation of others, in the capacity of counsellors to him.” THE FEDERALIST, No. 70 at 472-73 (Alexander Hamilton) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961). The Opinion Clause thus provides the President with information-gathering powers within the unitary structure of the Executive, which in turn establishes that the power to receive opinions from executive officers is not subject to interference from the other branches. As one commentator has explained: The juxtaposition of the power the President was granted [in the Opinion Clause] and the restrictions on that power which were rejected suggests that the Framers expressly granted the President a discrete sphere of control over the process by which he gathers the information necessary to make a decision; a process that - within the context of the separation of powers - cannot be interfered with by the other two branches of government. Neil Thomas Proto, The Opinion Clause and Presidential Decision-Making, 44 Mo. L. REV. 185, 195 (1979) (emphases in original).The Recommendations Clause (along with the State of the Union Clause) provides further textual evidence of the President's powers to gather information and develop and propose policy. Those clauses expressly contemplate that the President will, “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient” two functions that he may even accomplish by invoking his power “to convene both Houses [of Congress], or either of them.” U.S. CONST., art. II, § 3. The President's duties to inform Congress and to recommend measures for its consideration both presuppose that the President “must possess more extensive sources of information *** than can belong to [C]ongress.” JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNNSTTITUTION OF THE UNITED STATES § 807 (Ronald D. Rotunda & John E. Nowak eds., Carolina Acad. Press 1987) (1833). Of course, those duties also presuppose that the President will be able to cultivate his sources of information, and also to develop the “measures” that he will recommend, because the quality of [FN31] his recommendations will be commensurate with his ability to inform himself and deliberate about them. Most importantly, the Recommendations Clause expressly vests the exercise of those powers in the President's own discretion. Because the President's duty requires him to recommend only what “ he shall judge necessary and expedient” (U.S. CONST., art. II, § 3 (emphasis added)), the Constitution indicates clearly that this exclusive power must remain free from interference. FN31. An earlier draft of the Recommendations Clause had referred to “Matters” rather than “Measures.” “The greater presidential participation needed to submit ‘measures' implicitly presumes that there exist presidential prerogatives of investigation, inquiry, and advocacy by which to formulate and articulate such proposed solutions.” J. Gregory Sidak, The Recommendation Clause, 77 GEO. L.J. 2079, 2084 (1989). Thus, the powers in both the Opinion and Recommendations Clauses are entrusted exclusively to the President and are textually committed to his discretion. Congress cannot regulate or exercise its derivative power to investigate the exercise of those functions. As the Supreme Court explained in Barenblatt v. United States, 360 U.S. 109 (1959): “Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one of the other branches [FN32] of the Government.” Id. at 111-112. For this reason, the Supreme Court has consistently refused to tolerate legislative intrusions on the Executive's express powers and duties. See INS v. Chadha, 462 U.S. 919 (1983) (Presentment Clause); United States v. Klein, 80 U.S. (13 Wall.) 128, 148 (1871) (“[I]t is clear that the legislature cannot change the effect of *** a pardon.”); Public Citizen v. Dep't of Justice, 491 U.S. 440, 482 (1989)

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(Kennedy, I, concurring) (Congress cannot “encroach[] upon a power that the text of the Constitution commits [FN33] in explicit terms to the President.”). FN32. As plaintiff acknowledges (Pl's. S.J. Mem. 7), Congress's power to investigate is only implicit in its power to legislate, and thus it cannot extend beyond the function it is supposed to aid. See McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (“the constitutional provisions which commit the legislative function to [Congress] are intended to include [the power of inquiry] to the end that the [legislative] function may be effectively exercised”). FN33. In that case, the three concurring justices found that Congress could not provide a right of access to information about the Justice Department's consultations with the ABA in the process of nominating federal judges without unconstitutionally “interfer[ing] with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution.” 491 U.S. at 488 (emphasis added). The rest of the Court in Public Citizen did not resolve this constitutional issue, because it chose to avoid “undeniabl[y]” “formidable constitutional difficulties” by construing the Federal Advisory Committee Act so as not to apply to the Justice Department's consultations with the ABA. Id. at 466 (majority opinion). Interference with the President's information-gathering activities is no less unconstitutional when it affects his exercise of his Recommendations or Opinion Clause authority than when it touches on his power to grant pardons, nominate judges, or have legislation presented for his approval or veto. Indeed, the interference with express constitutional functions is particularly grave because both of those clauses directly implicate the information-gathering and policy-development process itself. Although the Recommendations Clause contemplates the transfer of information to Congress, it expressly leaves to the President's judgment what it would be “necessary and expedient” to communicate. As Barenblatt shows, Congress simply lacks authority to inquire into the NEPDG's activities, because they are “matters *** within the exclusive province” of the Executive. 360 U.S. at 111-112. Where the text of the Constitution explicitly commits a power to the President, the courts “refuse [] to tolerate any intrusion by the Legislative Branch.” Public Citizen, 491 U.S. at 485 (concurring opinion) (emphasis in original); see also Schick v. Reed, 419 U.S. 256, 266 (1974) (pardon power “flows from the Constitution *** and *** cannot be modified, abridged, or diminished by the Congress”); cf. Plaut v. Spendthrift Farms. Inc., 514 U.S. 211, 227 (1995) (Congress cannot interfere with Judiciary's power to issue final judgments). Allowing the Comptroller General to inquire into or compel disclosure about how the President carried out his constitutional functions with the NEPDG “would constitute a direct and real interference” with the President's core powers, including those granted by the Opinion Clause and Recommendations Clause. Public Citizen, 491 U.S. at 488 (Kennedy, J., concurring); see also Jay S. Bybee, Advising the President: Separation of Powers and the Federal Advisory Committee Act, 104 YALE L.J. 51, 105 (1994) (“Any restriction on the President's access to advice would impede not only his ability to recommend to Congress needed changes, but also his ability to carry out his remaining duties.”). The Opinion and Recommendations Clauses expressly commit powers to a particular branch of the Government in the text of the Constitution, which makes any degree of congressional intrusion unconstitutional. Put simply, the “mere fact” that the statutory provisions on which the Comptroller General relies “would regulate so as to interfere with the manner in which the President obtains information necessary to discharge his duty assigned under the Constitution *** is enough to invalidate the Act.” Public Citizen, 491 U.S. at 488-89 (Kennedy, J., concurring) (emphasis added).

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There can be no question that the virtually unlimited right of access that the Comptroller General asserts would significantly interfere with the process by which the Executive Branch obtains information and exercises its constitutional functions. As the D.C. Circuit has explained, the “mere presence” of legislative agents, even if they “remain completely silent,” has significant “potential to influence” the decision-making process that they are observing. FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993). The chilling effect recognized by the D.C. Circuit will be no different if the stages of the decision-making process are reviewed after the fact than if the observations occur while the decision-making process is still ongoing. Indeed, plaintiff's own arguments contemplate the aggressive regulation of the President's information-gathering and policy-developing powers. He contends that Congress needs to know about the behind-the-scenes operation of the NEPDG to evaluate “the desirability of additional appropriations restrictions to control the use of public money for energy policy development in the future.” Pl's. S.J. Mem. 3. Furthermore, he assumes that Congress could impose such restrictions on the Executive to prevent “establishment[s] within the White House” from being “responsib[le] for energy policy development.” Id. at 34. Contrary to plaintiff's suggestions, Congress cannot evade the constitutional limitations on its investigative and legislative powers by invoking its power of the purse. Any attempt by Congress to regulate the President's core textual powers through its power over appropriations would violate separation-of-powers principles. See United States v. Will, 449 U.S. 200, 226, 230 (1980) (holding that certain appropriations affecting judicial salaries violated Article III). Congress's spending power does not allow it to “impair the President's pardon power by denying him appropriations for pen and paper.” OPM v. Richmond, 496 U.S. 414, 435 (1990) (White, 1, concurring, joined by Blackmun, J.); see also Klein, 80 U.S. at 147 (holding that Congress could not use an appropriations rider to “impair[] the effect of a pardon, and thus infring[e] the constitutional power of the Executive”). Similarly, in this case, Congress cannot regulate § and, by regulating, attempt to forbid - the President's consultations with whomever he judges necessary to accomplish his constitutional functions under the Opinion and Recommendations Clauses. In sum, the per se test required by Barenblatt and the cases dealing with express constitutional functions applies in this case and clearly forecloses the powers asserted by the Comptroller General. B. Even under a balancing approach, the President's information-gathering and confidentiality interests greatly outweigh any purported legislative interest here Even if this Court balances the intrusion on executive power with the legislative interest at stake, rather than applying the per se test of Barenblatt, the Comptroller General's asserted authority would be just as unconstitutional. The threat to the President posed by this case is great because the intrusion is so extensive. On the other hand, the Legislature has no legitimate interest in the information the Comptroller General seeks, and has other means to pursue it in any event. The D.C. Circuit addressed a somewhat less obvious separation-of-powers threat in AAPS. The plaintiff in that case sought to apply the Federal Advisory Committee Act to President Clinton's Task Force on National Health Care Reform. The court avoided a decision on the constitutional question by applying the doctrine of constitutional avoidance. Nevertheless, it recognized the serious constitutional concerns that would arise from any “statute interfering with a President's ability to seek advice” “from those closest to him, whether in or out of government.” 997 F.2d at 910 (internal citation and quotation marks omitted). In dicta, the court indicated that, were it to reach the constitutional issue, it would apply a standard it extrapolated from Morrison v. Olson and find the statute to be unconstitutional as applied. It summarized that standard as follows: “Morrison tells us to balance how much the interference with the President's executive power prevents the President from accom-

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plishing his constitutionally assigned functions against the overriding need to promote objectives within the constitutional authority of Congress.” 997 F.2d at 910. Under that approach, the Comptroller General's asserted authority to intrude into the President's methods of informing himself for the purpose of proposing policy initiatives “‘impermissibly undermine[s]’ the powers of the Executive Branch, *** or ‘disrupts the proper balance between the coordinate branches.”’ Morrison v. Olson, 487 U.S. 654, 695 (1988). It is hard to imagine a more direct assault on the President's core executive powers than the asserted authority of a congressional agent to superintend the deliberative process by which the Vice President and others formulated policy recommendations for and on behalf of the President. The information that the Comptroller General seeks would expose information-gathering and policy-making activities (including deliberations) at the heart of the Executive Branch. Despite his protestations of restraint, the broad categories of information plaintiff requests in this lawsuit speak for themselves. He asks this Court to require disclosure of everyone that the Vice President met with while he was serving as a close presidential adviser discharging express constitutional functions at the request of the President, the “purpose” and “agenda” of each of those meetings, and even what decision-making process the Vice President and his staff followed in “determin[ing] who [FN34] would be invited to the meetings.” Compl. Prayer for Relief ¶ (a). FN34. Note that these requests belie the Comptroller General's claim in his August 18, 2001 statutory report that “we are not asking for any communications involving the President, the Vice President, or the President's senior advisers.” Compl. Ex. K at 4. In any event, the constitutionality of these statutes must be evaluated on the basis of the authority they convey to the Comptroller General (which in his view is virtually limitless), not the authority he has, in fact, exercised in this test case. The Comptroller General's asserted authority strikes at the heart of the Executive's constitutional functions. At a minimum, it would intrude upon powers that are textually committed to the Executive - a result that, even taken alone, must weigh heavily in the balance (if it does not dispose of the need for the balancing, see supra). Moreover, just as in AAPS, plaintiff's action “implicates executive powers” because it would interfere with a group that has “operational proximity to the President.” 997 F.2d at 898 (emphasis in original). In addition, plaintiff's claim would compromise executive branch deliberations by undercutting the President's wellrecognized need for confidentiality. See, e.g., United States v. Nixon, 418 U.S. 683, 708 (1974) (“A President and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to do so in a way many would be unwilling to express except privately.”); In re Sealed Case, 121 F.3d 729, 750 (D.C. Cir. 1997) (“[T]he critical role that confidentiality plays in ensuring an adequate exploration of alternatives cannot be gainsaid. If presidential advisers must assume they will be held to account publicly for all approaches that were advanced, considered but ultimately rejected, they will almost inevitably be inclined [FN35] to avoid serious consideration of novel or controversial approaches to presidential problems.”). As the court in AAPS explained, “[a] group directly reporting [to] and advising the President must have confidentiality in each stage in the formulation of advice to him.” 997 F.2d at 910. But requiring “disclosure of the real information-gathering process ” would “inevitably *** compromise[]” the “confidentiality of the advice-giving function.” Id. (emphasis added). The Comptroller General's claim in this case would compromise the confidentiality of advice within the Executive Branch because he asserts, after all, the authority to investigate not only the “results” of the NEPDG's deliberations, but also the deliberative “process” itself. FN35. In In re Sealed Case, the D.C. Circuit also expressly held that the President's constitutionally protected interest in confidentiality extends to conversations among his immediate advisers for which the President is not present. See 121 F.3d at 750.

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Against those great intrusions, plaintiff can offer no bona fide congressional interests. As an initial matter, Congress's legitimate interests are non-existent when it comes to investigating the discharge of functions within the exclusive province of another branch. See Barenblatt, 360 U.S. at 111-112. Congress's non-textual investigative authority is derivative of its legislative authority and Congress could not validly regulate the process by which the Vice President and President formulate presidential recommendations. Notwithstanding that limitation, plaintiff has suggested several hypothetical reasons why Congress might be interested in the process by which the NEPDG developed its policy recommendations. By and large, those conjectural interests rely on untenable assumptions about Congress's powers - for example, that Congress needs to know whether the NEPDG consulted with a sufficient number of people so that it can determine whether it should exercise its purported power to “attach riders to appropriations laws that prohibit the executive branch from developing comprehensive energy policies through private task force meetings with only selected members of the public.” Pl's. S.J. Mem. 27. Even if plaintiff could identify some legitimate legislative interest in the information, that peripheral interest would clearly be insufficiently weighty to justify intrusion upon the President's exercise of his constitutional powers and his interest in confidential information-gathering and deliberations. Precedent shows that it takes especially heavy interests to outweigh even those interests of the Executive that are only implicitly protected by the Constitution. See, e.g., United States v. Nixon, 418 U.S. at 713 (allowing in camera review of executive communications only because of a “demonstrated, specific need for evidence in a pending criminal trial”). The D.C. Circuit has indicated just how substantial Congress's interests need to be to warrant disclosure of executive materials. In Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), the D.C. Circuit, sitting en banc, refused to enforce a congressional subpoena for the Watergate tapes. In doing so, the court recognized the “great public interest in maintaining the confidentiality of conversations that take place in the President's performance of his official duties.” Id. at 729. The court said that interest could “be defeated only by a strong showing of need by another institution of government - a showing that the responsibilities of that institution cannot responsibly be fulfilled without access to records of the President's deliberations.” Id. at 730 (emphasis added). Applying that standard, the court concluded that a congressional committee's desire to satisfy its legislative responsibilities and its purported “oversight power,” was insufficient to overcome the President's paramount interest. See id. at 732-733. Thus, Congress lost because it could not demonstrate that the subpoenaed evidence was “demonstrably critical to the responsible fulfillment” of its appropriate functions. Id. at 731. Congress's needs for executive branch records are significantly less weighty in this case. Congress has already received the most important information it needs to accomplish its legislative functions: the President's actual policy proposals and initiatives, along with his judgment that those measures are necessary and expedient. Congress may use that information to reach its own independent conclusions about the recommendations. It can also obtain information to assist that process from its own sources, and does not need to know what sources were [FN36] used in the development of the NEPDG's recommendations. Even so, if Congress truly is interested in further details about the President's proposals and initiatives, it may attempt to employ its own information-gathering powers (efforts that have been held to be prerequisites for judicial involvement, see supra Part II). FN36. Plaintiff suggests that the validity or desirability of the NEPDG's policy proposals turns in part on who the Vice President and others consulted while developing those proposals. As the Supreme Court has already recognized in the legislative context, the actions of democratically accountable officials stand on their own, regardless of who pressed for or opposed those actions. See Mazurek v. Arm-

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strong, 520 U.S. 968, 973 (1997) (“the fact that an anti-abortion group drafted the Montana law *** says nothing significant about the legislature's purpose in passing it”). C. A civil enforcement action brought by a legislative agent against the Executive violates Article II's Take Care Clause The judicial-enforcement provisions of § 716 also violate the separation of powers by impermissibly assigning an executive power to a legislative agent. Section 716(b) purports to delegate to the Comptroller General the power to enforce a statutorily created right to information. Because the power to bring an enforcement action to vindicate public interests is executive in nature, it is unconstitutional for Congress to retain it for its own agent. In Bowsher v. Synar, 478 U.S. 714 (1986), the Supreme Court held that the Comptroller General is Congress's agent and “he may not be entrusted with executive powers.” Id. at 732. That result is dictated by the nature of separation of powers: “The structure of the Constitution does not permit Congress to execute the laws; it follows that Congress cannot grant to an officer under its control what it does not possess.” Id. at 726; see also Metropolitan Washington Airports Auth. v. Citizens for the Abatement of Aircraft Noise, 501 U.S. 252, 276 (1991) (“If the power is executive, the Constitution does not permit an agent of Congress to exercise it.”); Buckley v. Valeo, 424 U.S. 1, 136 (1976) (“[T]he legislature cannot engraft executive duties upon a legislative office ***.” (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)). In Buckley, the Supreme Court invalidated a statutory scheme that allowed the Federal Elections Commission to file enforcement actions, because, as the FEC was then constituted, several of its members had been appointed by Congress. The Court admitted that those legislative agents could act in aid of legislative action, but it denied them the authority to seek judicial relief: The Commission's enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as merely in aid of the legislative function of Congress. A lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the Congress, that the Constitution entrusts the responsibility to “take Care that the Laws be faithfully executed.” 424 U.S. at 138 (emphasis added). The power to file a lawsuit on behalf of the government to vindicate public interests is a quintessentially executive power. Here, Congress has vested that core executive power in its own agent. The Supreme Court's separation-of-powers jurisprudence has consistently recognized the substantial difference between congressional initiatives that force the executive or judiciary to share power with others, and those that actually enlarge Congress's own powers. See, e.g., Morrison, 487 U.S. at 694 (“We observe first that this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.”); Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 856-857 (1986) (contrasting Bowsher's “question of the aggrandizement of congressional power at the expense of a coordinate branch” with the less-serious question of undermining of “the role of the Judicial Branch” “without appreciable expansion of [Congress's] own power”); Buckley, 424 U.S. at 122 (“The Framers regarded the checks and balances that they had built into the tripartite Federal Government as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other.”). In other words, there is a salient difference between a statute that creates a so-called “private attorney general” and one that creates an additional public attorney general who is not subject to executive control. See, e.g., At-

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lantic States Legal Found., Inc. v. Buffalo Envelope, 823 F. Supp. 1065, 1073-1075 (W.D.N.Y. 1993) (upholding citizen-suit provision because “Congress may *** determine who will vindicate [statutory] rights” and “[a] constitutional concern arises only where Congress has reserved unto itself the right to control or supervise the enforcement of the rights it created”); Delaware Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F. Supp. 1132, 1138 (E.D. Pa. 1993) (concluding that “citizen suits are not an unlawful delegation of executive power” because Congress has not granted executive power “to a person or persons under its control”); see also Morrison, 487 U.S. at 696 (explaining the Executive's powers to supervise and control the independent counsel; “[m]ost importantly, the Attorney General retains the power to remove the counsel for ‘good cause’ ***.”). The aggrandizement in this case is especially egregious because it would allow a legislative agent to wield executive powers against the Executive - and also to invoke the powers of the Judiciary in the process. Because § 716(b), if interpreted to allow this action, would effect a congressional aggrandizement of executive power in flagrant disregard for the Constitution's separation of powers, this Court should refuse to employ it and dismiss the Complaint. V. This Court Should Avoid Serious Constitutional Problems by Adopting Defendant's Reasonable Constructions of §§ 712, 716, and 717 This Court should adopt the statutory constructions advanced above, in Part III, based on traditional principles of statutory interpretation and governing case law. Yet, in light of the serious constitutional problems, described in Part IV, that would arise from construing the statutes to allow this lawsuit, this Court should, at the least, adopt the narrower view of these provisions urged by defendant under the well-established doctrine of constitutional avoidance. It is a “cardinal principle” that, where there is a “serious doubt of constitutionality” about a statute, a court should “ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932). Thus, to the extent that this Court finds defendant's statutory-construction arguments to be even “fairly possible,” it should adopt them and dismiss this case without directly addressing the difficult separation-of-powers questions that would otherwise be posed by the Comptroller General's unprecedented enforcement action. As described above, in Public Citizen, the Supreme Court unanimously recognized that serious constitutional problems would be posed by a potential infringement on the President's Article II power to nominate judges. See 491 U.S. at 466 (application of the statute would “undeniabl[y]” “present formidable constitutional difficulties”); id. at 482 (Kennedy, J., concurring in judgment, joined by Rehnquist, C.J., and O'Connor, J.) (finding a “plain” constitutional violation). The opinion of the Court explained that the doctrine of constitutional avoidance is “especially” applicable to cases - such as this one - that “concern the relative powers of coordinate branches of government.” Id. at 466. In light of that principle, it went so far as to reject what it called a “literalistic reading” of FACA. Id. at 463-464. In AAPS, the D.C. Circuit described the Supreme Court's decision in Public Citizen as adopting “an extremely [FN37] strained construction of the [statute] in order to avoid the constitutional question.” 997 F.2d at 906. And in AAPS itself, the D.C. Circuit applied the avoidance doctrine and concluded that FACA did not apply to President Clinton's Task Force on National Health Care Reform. It noted that any “statute interfering with a President's ability to seek advice *** raises Article II concerns,” and found those concerns would be especially great if a statute were to interfere with the President's attempt to “seek[] advice from those closest to him, whether in or out of government.” Id. at 910. The court avoided “the difficult constitutional issue” that the case posed by concluding that the First Lady was “a ‘full-time officer or employee’ of the government.” Id. at 910, 911.

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FN37. In turn, an opinion from this Court has said that the decisions in both Public Citizen and AAPS resorted to “adroit semantics” in order to avoid separation-of-powers questions. Northwest Forest Res. Council v. Espy, 846 F. Supp. 1009, 1014 (D.D.C. 1994). Plaintiff's claim in this case presents at least as grave a constitutional problem as those avoided in Public Citizen and AAPS. The Comptroller General seeks to gain judicially compelled access to documents that record information-gathering and policy-development activities at the highest levels of the Executive. Just as in AAPS, constitutional “difficulties arise because of the [NEPDG's] operational proximity to the President himself - that is, because the [NEPDG] provide[d] advice and recommendations directly to the President.” 997 F.2d at 909 (emphasis added). Construing the statutes to permit this lawsuit to proceed would clearly present “serious constitutional problems.” Solid Waste Agency v. Army Corps of Eng'rs, 531 U.S. 159, 173 (2001). As described in Part III, defendant's proposed constructions of §§ 712(1), 716(b), and 717(b) are reasonable as a matter of statutory construction. Defendant's readings would shield from congressional encroachment the President's ability to have his close advisers discharge constitutionally enumerated functions, but they would do so only by preventing the excesses of plaintiff's positions - not by leaving the Comptroller General powerless. Indeed, recognizing the limits inherent in the language of §§ 716 and 717 would not interfere with the Comptroller General's ability to seek records from traditional “agencies” (i.e., virtually the entire Executive Branch, excepting only the President, the Vice President, and the President's other close advisers whose sole function is to advise and assist the President). Nor would it prevent Congress - if it actually intends for the Comptroller General to seek judicial enforcement against the President or Vice President himself - from making the “express statement” required by Franklin. Similarly, to recognize the limits inherent in the language of §§ 712(1) and 717(b) would not interfere with the Comptroller General's ability to evaluate the results of federal programs authorized by statute (i.e., most of the activities of the Executive Branch, excepting only those that are conducted pursuant to the powers expressly enumerated in Article II). Nor would it prevent the Comptroller General from initiating such an evaluation on the basis of an honest judgment rather than an automatic response to a mistaken belief about the authority of ranking minority members to act for their committees. Public Citizen and AAPS demonstrate that this Court should prefer any reasonable statutory construction to one that would interfere with the President's ability to seek advice in pursuance of his constitutional functions. Accordingly, this Court should adopt the reasonable constructions of §§ 712(1), 716(b), and 717(b) articulated [FN38] above and dismiss the Complaint. FN38. Of course, the Court need not reach every one of the statutory questions in order to dismiss the Complaint. If the Vice President is not the head of an agency under § 716(b) - either because Congress has failed to make the express statement required by Franklin or because the NEPDG operated (like the task force in Meyer) only to advise and assist the President - that reason alone requires dismissal under Rule 12(b)(6). CONCLUSION For the reasons set forth above, the Court should deny plaintiff's motion for summary judgment, and grant defendant's motion to dismiss. Respectfully submitted, May 21, 2002

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ROBERT D. McCALLUM, JR., Assistant Attorney General ROSCOE C. HOWARD, JR., United States Attorney SHANNEN W. COFFIN (DC Bar 449197), Deputy Assistant Attorney General THOMAS MILLET (DC Bar 294405), Attorney, Civil Division THEODORE B. OLSON (DC Bar 367456), Solicitor General PAVL D. CLEMENT (DC Bar 433215), Deputy Solicitor General DAVID B. SALMONS (DC Bar 476299), Assistant to the Solicitor General Department of Justice, 10th & Penn. Ave., N.W., Washington, D. C. 20530-0001, Tel: (202) 514-3313, Fax: (202) 616-8202, Attorneys for Defendant END OF DOCUMENT

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Exhibit B

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For Opinion See 230 F.Supp.2d 51 Call Westlaw CourtExpress at 1-877-DOC-RETR (1-877-362-7387)to order copies of documents related to this or other matters.Additional charges apply United States District Court, District of Columbia. David M. WALKER, comptroller general of the United States, Plaintiff, v. Richard B. CHENEY, Vice president of the United States, Defendant. C.A. No.1:02cv340JDB August 26, 2002. Defendant's Memorandum of Points and Authorities in Reply to Plaintiff's Opposition to Motion to Dismiss TABLE OF CONTENTS Preliminary Statement ... 1 Argument ... 2 I. Plaintiff Lacks Standing ... 2 II. This Action Should Be Dismissed As A Matter Of Equitable Discretion ... 9 III. The Comptroller General Lacks Statutory Authority To Bring This Lawsuit Or To Review The NEPDG's Activities ... 12 A. The Vice President Is Not The “Head Of An Agency” Under 31 U.S.C. § 716 ... 12 1. Congress Has Not Expressly Stated That The Vice President Is An “Agency” ... 13 2. Entities That Only “Advise And Assist The President” Are Not “Agencies” ... 19 B. Section 712 Does Not Apply Because The Comptroller General Is Not Investigating The “Use Of Public Money” ... 20 C. The Comptroller General Is Not Evaluating The “Results Of A Program Or Activity The Government Carries Out Under Existing Law” ... 23 1. The NEPDG Did Not Carry Out A “Program Or Activity” “Under Existing Law” ... 23 2. The NEPDG's Activities Were Not The “Results” Of A Program Or Activity ... 26 IV. The Comptroller General's Enforcement Action Violates The Constitutional Doctrine Of Separated Powers ... 28

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A. Neither Statutory Certification Nor An Assertion Of Executive Privilege Is A Necessary Predicate For Addressing Constitutional Problems ... 28 B. The NEPDG's Activities Are Not Legitimately Subject To Congressional Investigation ... 32 1. The NEPDG Operated Pursuant To The President's Exclusive Article II Powers ... 32 2. Even Under A Balancing Approach, The President's Information-Gathering And Confidentiality Interests Greatly Outweigh Any Purported Legislative Interest ... 37 C. A Legislative Agent Cannot Bring A Civil Enforcement Action Against The Executive ... 41 V. Well-Established Principles Of Constitutional Avoidance Compel Rejection Of Plaintiff s Statutory Arguments ... 47 Conclusion ... 49 TABLE OF AUTHORITIES CASES Alaska v. Carter, 462 F. Supp, 1155 (D. Alaska 1978) ... 26 Alden v. Maine, 527 U.S. 706 (1999) ... 8 Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) ... 43 † Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991) ... 13, 16, 17 † Armstrong v. Executive Office of the President, 90 F.3d 553 (D.C. Cir. 1996) ... 14, 17, 48 † Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898 (D.C. Cir. 1993) ... 16, 17, 29, 30, 37, 38, 47 † Barenblatt v. United States, 360 U.S. 109 (1959) ... 32, 34 Bowsher v. Merck & Co., 460 U.S. 824 (1983) ... 5 † Buckley v. Valeo, 424 U.S. 1 (1976) ... 43 Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999), cert. denied, 529 U.S. 1012 (2000) ... 10 Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) ... 21 Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921 (D.C. Cir. 1982) ... 29 Dalton v. Specter, 511 U.S. 462 (1994) ... 26 Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999) ... 7

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Eastland v. United States Servicemen's Fund, 421 U.S. 491 (1975) ... 42 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) ... 47 Exxon Corp. v. FTC, 589 F.2d 582 (D.C. Cir. 1978) ... 45 FEC v. NRA Political Victory Fund, 6 F.3d 821 (D.C. Cir. 1993) ... 16 FEC v. Akins, 524 U.S. 11 (1998) ... 2, 3 † Franklin v. Massachusetts, 505 U.S. 788 (1992) ... 13, 14, 48 Goldwater v. Carter, 444 U.S. 996 (1979) ... 9 Gutierrez v. Ada, 528 U.S. 250 (2000) ... 21 Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) ... 14 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ... 3 In re Chapman, 166 U.S. 661 (1897) ... 43, 44 In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ... 30, 32 INS v. Chadha, 462 U.S. 919 (1983) ... 17 Kilbourn v. Thompson, 103 U.S. 168 (1880) ... 43 Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136 (1980) ... 14, 19 Marshall v. Gordon, 243 U.S. 521 (1917) ... 43 McDonnell Douglas Corp. v. United States, 754 F.2d 365 (Fed. Cir. 1985) ... 44 † McGrain v. Daugherty, 273 U.S. 135 (1927) ... 42 Melcher v. Federal Open Mkt. Comm., 836 F.2d 561 (D.C. Cir. 1987), cert. denied, 486 U.S. 1042 (1988) ... 9 † Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) ... 14, 15, 19, 30, 48 Moore v. United States House of Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985) ... 9 Morrison v. Olson, 487 U.S. 654 (1988) ... 36 Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) ... 22 Nixon v. Administrator of Gen. Services, 433 U.S. 425 (1977) ... 29,40 Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975) ... 29, 48

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Pacific Legal Found. v. Council on Envtl, Quality, 636 F.2d 1259 (D.C. Cir. 1980) ... 31 † Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989) ... 2-3, 16, 29, 47, 48 Ouinn v. United States, 349 U.S. 155 (1955) ... 41 † Raines v. Byrd, 521 U.S. 811 (1997) ... 2, 3, 4, 5, 6, 7, 8, 9 † Reed v. County Commissioners of Delaware County, 277 U.S. 376 (1928) ... 7, 42 Riegle v. Federal Open Mkt. Comm., 656 F.2d 873 (D.C. Cir. 1981 ... 9 Ryan v. Dep't of Justice, 617 F.2d 8781 (D.C. Cir. 1980) ... 15-16 Schwartz v. United States Dep't of Treasury, 131 F. Supp.2d 142 (D.D.C. 2000), aff'd, 2001 WL 674636 (D.C. Cir. 2001) ... 14 Senate Select Comm. v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc) ... 5, 6, 32, 44 Soucie v. David, 448 F.2d 1067 (D.C. Cir. 1971) ... 31 TVA v. EPA, 278 F.3d 1184(11th Cir. 2002) ... 14 Tennessee Power Co. v. TVA, 306 U.S. 118 (1939) ... 14 Tenney v. Brandhove, 341 U.S. 367 (1951) ... 43 † United States v. AT&T Co., 551 F.2d 384 (D.C.Cir. 1976) ... 10, 16, 45 † United States v. AT&T Co., 567 F.2d 121 (D.C. Cir. 1977) ... 10 United States v. Bass, 404 U.S. 336 (1971) ... 13 United States v. Bryan, 339 U.S. 323 (1950) ... 44 United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983) ... 11 United States v. McDonnell Douglas Corp., 751 F.2d 220 (8th Cir. 1984) ... 5, 44 United States v. Nixon, 418 U.S. 683 (1974) ... 31-32 United States v. Nordic Village, Inc., 503 U.S. 30 (1992) ... 15 Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000) ... 5 † Watkins v. United States, 354 U.S. 178 (1957) ... 5, 44, 45 Weinberger v. Romero-Barcelo, 465 U.S. 305 (1982) ... 10 Will v. Michigan Dep't of State Police, 491 U.S. 58 (1989) ... 13

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Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987) ... 44 CONSTITUTION U.S. Const. art. II, § 2, cl. 1 ... 26 U.S. Const. art. II, § 3 ... 26, 33 U.S. Const. art. III, § 2, cl. 1 ... 24 U.S. Const. amend. I ... 33 U.S. Const. amend. XXI, § 2 ... 25 FEDERAL STATUTES 1 U.S.C. § 1 ... 14 2 U.S.C. § 288b(b) ... 45 3 U.S.C. § 112 ... 17 5 U.S.C. § 551(1) ... 19 5 U.S.C. § 552(f)(1) ... 19 5 U.S.C. app. § 3(2) ... 31 5 U.S.C. app. § 10(b) ... 31 5 U.S.C. app. § 10(c) ... 31 18 U.S.C. § 6005(b)(1), (2) ... 46 28 U.S.C. § 1331 ... 24 28 U.S.C. § 1365(a) ... 46 28 U.S.C. § 1365(e) ... 47 31 U.S.C. § 101 ... 13, 19 31 U.S.C. § 701 ... 13 31 U.S.C. § 712 ... 20 31 U.S.C. § 712(1) ... 20, 21, 22 31 U.S.C. § 716 ... 15, 16, 17, 18, 19, 20, 30, 31 31 U.S.C. § 716(b) ... 12

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31 U.S.C. § 716(c)(1) ... 44 31 U.S.C. § 716(d)(1) ... 20 31 U.S.C. § 716(d)(1)(C) ... 30 31 U.S.C. § 717(b) ... 20, 22, 23, 25, 26, 27, 28 44 U.S.C. § 2207 ... 17 Budget and Accounting Act, § 2, 42 Stat. 20 (1921) ... 19 LEGISLATIVE MATERIALS H.R. Rep. No. 97-651 (1982), as reprinted in 1982 U.S.C.C.A.N. 1895 ... 14 H.R. Doc. No. 94-661, Ch. 15, § 22 (1977) ... 45 Rules of the H. of Rep, 107th Cong., rule XI, cl. 2(m)(3)(C) (2001) ... 46 S. Rep. No. 95-170 (1977), reprinted in 1978 U.S.C.C.A.N. 4216 ... 46 S. Rep. No. 96-570 (1980), reprinted in 1980 U.S.C.C.A.N. 732 ... 15 MISCELLANEOUS Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647 (1996) ... 35 Jay S. Bybee, Advising the President, 104 Yale L.J. 51 (1994) ... 37 Executive Branch Consultations With Congress Did Not Fully Meet Expectations in 1999-2000. GAO-01-917 (Sept. 2001) ... 25 The Federalist No. 70 at 746 (Alexander Hamilton) (Jacob E. Cooke ed., 1961 ... 35 Improved Executive Branch Oversight Needed for the Government's National Security Information Classification Program, LCD-78-125 ... 26 Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1 (Nov. 1999) ... 24 Strengthening Comptroller General's Access to Records: New Procedures for Appointment: Hearings Before a Subcomm. of the House Comm. on Gov't Operations, 95th Cong., 2d Sess. 45 (1978) ... 19 The Use of Presidential Directives to Make and Implement U.S. Policy, GAO/NSIAD-89-31 (Dec. 1988) ... 25 PRELIMINARY STATEMENT In his most recent brief, the Comptroller General claims that the dismissal of this action would permanently “shackle Congress's [investigative] power in [a] remarkable and unprecedented manner.” Plaintiff's Consolidated Reply (“Pl's. Reply”) 1-2. He makes this claim despite the undisputed facts that no Comptroller General has

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ever sued to compel any executive-branch official to produce a document and no court has ever ordered the Executive Branch to produce a document to Congress or one of its agents. It is plaintiff's position, not defendant's, that would change the accepted historical practice and forever tilt the balance between the Executive and Congress. Two individual members of Congress instigated this lawsuit. Yet, plaintiff goes to great lengths to establish that he seeks NEPDG documents to serve Congress's institutional interests on his own initiative, rather than on behalf of even two members. In any event, Congress itself has not taken any meaningful act that would indicate it has any interest in the information plaintiff seeks. Plaintiff therefore lacks standing, and there is no cause for this Court to intervene at this stage, when neither the Congress, a House of Congress, a committee of Congress, nor even a subcommittee of Congress has acted. Further, as defendant has demonstrated, plaintiff lacks the statutory authority to pursue his demands against the Vice President. Neither the plain language, nor common sense, requires interpreting the relevant statutory provisions to give the Comptroller General the authority to sue anyone, up to and including the President and Vice President, with respect to any matter that involves any expenditure of government time or money. Of course, if plaintiff really possesses the virtually limitless authority he claims, then his statutory powers would plainly violate the Constitution. Regardless of whether the question is analyzed through the exclusive powers assigned to each branch by the Constitution or through a balancing of the harms that would accrue to each, plaintiff claims nothing less than a legislative power to regulate the manner in which the President and his closest advisers develop the President's policies - a power that Congress does not have and one that it cannot assign to itself or its agents consistent with constitutional separation-of-powers principles. To grant an agent of Congress the power to enlist the courts in document disputes with the Executive would fundamentally alter “the regime that has obtained under our constitution to date.” Raines v. Byrd, 521 U.S. 811,828 (1997). It would, indeed, work a revolution in the separation of powers. This Court should decline plaintiff's invitation to alter our constitutional regime and dismiss this lawsuit. ARGUMENT I. Plaintiff Lacks Standing The Article III limitations on congressional standing articulated in Raines, apply to plaintiff's claims and preclude any finding of standing in this case. See Def's. Mem. 10-16. Plaintiff advances several arguments in an attempt to evade those standing limitations. None has merit. As an initial matter, plaintiff appears to vacillate as to whose injuries he is seeking to vindicate in this lawsuit. When it suits his purposes, plaintiff readily confesses that he brings this action solely in his official capacity as an agent of Congress, to vindicate Congress's investigative power. See, e.g., Pl's. Reply 22 (“Congress did not merely assign a claim for injury to its investigative power to the Comptroller General; it delegated the power itself to him, and expressly authorized him to seek judicial relief when an executive branch official or private citizen frustrated his exercise of that power.”). Yet in discussing standing, plaintiff appears to disavow any attempt to vindicate Congress's institutional interests, and likens his injuries in not receiving documents to those of citizens, who of course do not exercise Congress's investigative power. See id. at 17 (citing FEC v. Akins, 524 U.S. 11 (1998); Public Citizen v. United States Dep't of Justice, 491 U.S. 440 (1989)); see also Reid Amicus Br. 13 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), for the same proposition).

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Plaintiff cannot have it both ways, and it is clear that he is no ordinary plaintiff seeking to enforce his personal rights under a disclosure statute. Properly understood, plaintiff asserts an injury only in his official capacity as an agent of Congress, exercising Congress's delegated investigative power. Like the congressional plaintiffs in Raines, “[i]f[plaintiff] were to retire tomorrow, he would no longer have a claim; the claim would be possessed by his successor instead.” 521 U.S. at 821. Moreover, plaintiff's Complaint makes clear that he is acting solely as an agent of Congress and is seeking information “to aid Congress in considering proposed legislation.” Compl. ¶ 2. And his opening memorandum candidly acknowledges that he wants the information because he theorizes that it might help Congress to “adopt new appropriations restrictions on the use of federal funds to conduct private meetings on matters of national policy,” including appropriations riders “that prohibit the executive branch from developing comprehensive energy policies through private task force meetings with only selected members of the public, or that condition the use of funds for such meetings on after-the-fact disclosures concerning the persons in attendance and the subjects discussed.” Pl's. S.J. Mem. 26, 27. His reliance on Akins and Public Citizen, both of which involved the rights of private parties under disclosure statutes, is therefore misplaced. Thus, the real - and only - “injury” plaintiff seeks to remedy in this case is a perceived institutional injury to Congress's collective powers. Whatever else can be said about these abstract and hypothetical injuries to congressional power, they - like the injuries alleged in Raines - necessarily constitute “institutional injur[ies] (the diminution of legislative power), which necessarily damage[] all Members of Congress and both Houses of Congress equally.” 521 U.S. at 821. Although, as the designated agent of Congress, plaintiff may feel this institutional injury acutely, it remains an institutional injury to Congress's collective powers. Plaintiff thus fits squarely within Raines's holding that an individual plaintiff - even one expressly authorized to sue, as the individual members of Congress were in Raines, see Def's. Mem. 11 - lacks standing to remedy the kinds of institutional [FN1] injuries plaintiff asserts here. 521 U.S. at 829. FN1. Contrary to the assertions of plaintiff and amicus Reid, defendant has not argued that plaintiff cannot, as a matter of law, assert an injury in his official capacity. Rather, defendant contends that the absence of congressional authorization for this specific action and the lack of any asserted personal interest by plaintiff preclude any finding of injury. Amicus Reid's hyperbolic claim that defendant's argument will spell the end of Congress's ability to investigate executive-branch activities ignores the fact that this is the first effort by a Comptroller General to enforce his demands for executive-branch documents through judicial action. Plaintiff spills considerable ink refuting an argument that defendant never made - that Congress cannot delegate its investigative powers. The point is not that Congress cannot delegate its investigative powers to an agent, but that in so doing, Congress cannot evade the limits on its ability to vindicate abstract institutional injuries in court. Delegation to a congressional agent does not transmogrify a lawsuit into something other than a lawsuit to vindicate institutional interests. The legislative standing problem in Raines would not have gone away if the Line Item Veto Act created a mechanism for the Comptroller General or Senate Legal Counsel to institute a lawsuit at Senator Byrd's request, rather than authorizing him to file the lawsuit himself. Moreover, it does not matter for purposes of standing whether plaintiff is acting at the behest of two individual members, whose request initiated his investigation into the NEPDG and who themselves would lack standing under Raines, or, as he now claims, on his own initiative to vindicate the interests of Congress as a whole. See Pl's. Reply 18-19,22. Either way, plaintiff lacks standing. Contrary to plaintiff's and amicus Reid's suggestion, the fact that plaintiff is an unelected congressional agent, rather than a member of Congress, does not cure - and

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indeed only exacerbates - the standing and separation-of-powers problems raised by this suit. Raines effectively struck down an attempt by Congress to confer standing and authority to sue on “[a]ny Member of Congress.” 521 U.S. at 815 (citation omitted). Congress cannot avoid that holding by purporting to confer that same author[FN2] ity on an unelected agent, whether that agent is acting at the behest of an individual member or sua sponte. FN2. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000), is of no assistance to plaintiff. In that case, the Supreme Court held that the assignment of the United States' interest in a false-claims action did not create a constitutional problem. Nothing in Vermont Agency, however, suggests that Congress can avoid a constitutional limit on its standing by delegating the authority to sue to vindicate congressional interests to an unelected agent. Id. at 774. Equally misplaced is plaintiff's reliance on Bowsher v. Merck & Co., 460 U.S. 824 (1983), for the proposition that the absence of any express authorization for this specific action is irrelevant. In that case, the Comptroller General had a contractual right to demand the information sought from a government contractor. Id. at 828. Further, the United States intervened as a party to pursue the same claim. Id. at 829; see also United States v. McDonnell Douglas Corp., 751 F.2d 220, 223 (8th Cir. 1984) (“McDonnell Douglas I ”). Thus, no question of plaintiff's standing was presented. As in Raines, plaintiff seeks to sue to vindicate Congress' s institutional interests, without any actions by Congress as a whole, or even as much as a subcommittee, indicating that the documents are needed or that other, non-judicial avenues for obtaining the documents have been exhausted. The absence of those actions is fatal to any claim of “informational injury” on the part of Congress, or plaintiff as its agent. Cf. Raines, 521 U.S. at 829 (noting that no collective action had been taken by Congress to authorize the suit brought by individual members); Watkins v. United States, 354 U.S. 178, 206 (1957) (“It is impossible in such a situation to ascertain whether any legislative purpose justifies the disclosures sought and, if so, the importance of that information to the Congress in furtherance of its legislative function. The reason no court can make this critical judgment is that the House of Representatives itself has never made it.”). By contrast to this case, in Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (en banc), a case on which plaintiff heavily relies, the suit was endorsed not only by the full vote of the committee that initiated it, but also by a Senate resolution and the enactment by the full Congress of a specially tailored jurisdictional statute. Id. at 727. Contrary to plaintiff's assertion (Pl's. Reply 20-22), it is of no moment that Raines involved Congress's legislative power while this case involves its investigative power. Congress's investigative powers are wholly derivative of its legislative powers, see Def's. Mem. 54 & n.32, and Congress does not somehow strengthen its hand by relying on a derivative power. Congress suffers an informational “injury” only to the extent that its power to legislate in an appropriate area is impaired. If a direct impairment of that power does not suffice to confer standing, an indirect impairment fails a fortiori. Nor can plaintiff distinguish Raines on the ground that it was concerned only about precluding “disgruntled legislators from frustrating the collective legislative will through judicial means.” Pl's. Reply 21. As a congressional agent, plaintiff understandably focuses on Raines's salutary effect of prohibiting end-runs around the normal majoritarian legislative process, but the Supreme Court's primary focus in Raines was on “the judiciary's proper role in our system of government.” 521 U.S. at 818. In any event, this case raises precisely the concerns about “disgruntled legislators” that plaintiff attributes to Raines. Plaintiff acknowledges that he instituted this investigation at the request of two individual members of Congress and concedes that Congress has multiple collective means of seeking information regarding the NEPDG if it truly wants the information. In the absence of such collective action, however, there is simply no way to prevent ranking minority members or other individual

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members from initiating such investigations through the means of the Comptroller General precisely because they cannot persuade their colleagues to vote to issue a subpoena. Nor will denying plaintiff standing to bring this unprecedented lawsuit interfere with traditional efforts by Congress and its agents to obtain information from the Executive. The concerns of plaintiff and his amicus confuse commonplace congressional efforts to obtain documents without aid from the courts with extraordinary efforts to enlist the courts to obtain documents. Committees, subcommittees, and individual members remain free to request and receive executive-branch documents through the normal give and take by which the vast majority of executive-branch materials are shared with Congress. But, as the case law makes clear, some sort of collective action is needed before Congress, let alone its agents, can embroil the courts in the process. The Supreme Court made this distinction clear in Reed v. County Commissioners of Delaware County, 277 U.S. 376 (1928), when it upheld the dismissal of an action brought by senators by noting that the “[a]uthority to exert the powers of the Senate to compel production of evidence differs widely from authority to invoke judicial power for that purpose.” Id. at 389; see also Part IV.C below. Nor are plaintiff's standing woes solved by the fact that Congress has “authorized” plaintiff, unlike the senators in Reed, to bring a cause of action to enforce his document requests. The statute challenged in Raines likewise created an express cause of action, which purported to authorize any member of Congress to sue. 521 U.S. at 815-816. As the Court made clear in Raines, however, “Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.” Id. at 820 n.3; see also Department of Commerce v. United States House of Representatives, 525 U.S. 316, 328-329 (1999) . Moreover, because Congress and its agents retain ample non-judicial means to obtain documents, there is no precedent for finding standing for a congressional agent under the circumstances of this case. After reviewing more than a century of separation-of-powers disputes between the political branches, the Raines Court concluded: “It is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.” 521 U.S. at 826. The total lack of any historical support for judicial intervention into such disputes led the Supreme Court to hold that “grant[ing] standing in these cases *** is obviously not the regime that has obtained under our Constitution to date.” Id. at 828. Clearly, granting mere congressional agents the power to drag the Vice President into court to force compliance with informational requests without any collective action authorizing either the specific request for information or the subsequent effort to involve the courts would [FN3] bear no resemblance whatsoever to the “regime that has obtained under our Constitution.” FN3. Plaintiff disputes the significance of a congressional authorization in the context of a specific dispute over particular information, as opposed to a broad delegation to the Comptroller General of a general authorization to bring suit. There is, however, a critical difference in terms of political accountability and control. A vote by a committee or full House ensures that Congress needs the information and is willing to take political responsibility for insisting on access to it. A one-time broad delegation to the Comptroller General, by contrast, involves virtually no political accountability for Congress. It can sit on the sidelines, while the Executive expends political capital dealing with the Comptroller General. If the request is perceived as reasonable, Congress can associate itself with its agent, while if it is perceived as overbearing, Congress can distance itself from the request. In the context of a different structural aspect of the Constitution, the Supreme Court has drawn a sharp dichotomy between the level of political accountability and control involved in a general delegation of the power to sue, and the prosec-

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ution of a specific lawsuit. See Alden v. Maine, 527 U.S. 706, 756 (1999) (“Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States.”). Plaintiff, for his part, acknowledges the total lack of historical support for his suit, but oddly attempts to turn that novelty to his advantage, complaining that “defendant cites no case - and plaintiff is not aware of any - in which a court has ever ruled that, in authorizing its agents to seek judicial relief in aid of delegated investigative power, Congress must ‘act[] collectively after a particular dispute has arisen ”’ Pl's. Reply 14 (quoting Def's. Mem. 15 (emphasis in original)). In fact, there is no case in which a congressional agent like the Comptroller General, as opposed to a congressional committee, has filed suit to obtain executive-branch materials. And the burden is on the plaintiff to establish standing, not the defendant to disprove it. Given that Congress retains numerous potential political avenues for obtaining any information it needs for legislative purposes, and Congress and the Executive Branch have traditionally used their political mechanisms to resolve disputes over documents, plaintiff cannot possibly satisfy that burden here. As defendant demonstrated in his prior memorandum, it is the give and take of informal interactions between Congress and the Executive Branch, on occasion backed by more formal mechanisms, e.g., congressional subpoenas - not judicial actions brought by congressional agents - that is “the regime that has obtained under our Constitution to date.” Raines, 521 U.S. at 828. For that reason, plaintiff lacks standing to bring this action. II. This Action Should Be Dismissed As A Matter Of Equitable Discretion Separation-of-powers principles likewise compel this Court to exercise its equitable discretion and dismiss plaintiff's Complaint. See Def's. Mem. 16-21. This doctrine of equitable discretion counsels against embroiling the courts in inter-branch disputes where, as here, one or both of the branches have alternative means of pursuing their respective interests without the need for judicial intervention. See Riegle v. Federal Open Mkt. Comm., 656 F.2d 873, 881 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981); Melcher v. Federal Open Mkt. Comm., 836 F.2d 561 (D.C. Cir. 1987), cert. denied, 486 U.S. 1042 (1988); Moore v. United States House of Representatives, 733 F.2d 946 (D.C. Cir. 1984), cert. denied, 469 U.S. 1106 (1985); see also Goldwater v. Carter, 444 U.S. 996, 996 (1979) (Powell, J., concurring) (“The Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse.”). Plaintiff mistakenly asserts that the doctrine of equitable discretion no longer exists because it has been merged with modern standing law, and that even if it does exist, it applies only to cases brought by individual members [FN4] of Congress, not unelected congressional agents such as himself. Both arguments are mistaken. FN4. Plaintiff once again betrays his bias as a congressional agent by asserting (Pl's. Reply 27-28) that principles of equitable discretion serve only to protect the “internal affairs of the legislative branch.” Rather, the D.C. Circuit has explained that those separation-of-powers principles protect the courts and counsel against the premature resolution of competing legal claims between the political branches, for fear that any decisions would permanently “tilt the scales” of the balance of power between the two political branches - without any regard for the direction in which the scales would be tilted. United States v. AT&T Co., 551 F.2d 384, 394 (D.C. Cir. 1976) (“AT&T I”), appeal after remand, 567 F.2d 121 (D.C. Cir. 1977) (“AT&T II”). While it is true that modern standing requirements, particularly those articulated by the Supreme Court in Raines , reflect many of the same separation-of-powers concerns reflected in the equitable-discretion doctrine, that does

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not deny the doctrine's continuing validity. As the D.C. Circuit explained in Chenoweth v. Clinton, 181 F.3d 112, 115 (D.C. Cir. 1999), cert. denied, 529 U.S. 1012 (2000), “[o]ur [pre-Raines] conclusion that the [congressional] plaintiffs had standing to sue *** got them into court just long enough to have their case dismissed because of the separation of powers problems it created.” While the Supreme Court's legislative standing doctrine may now keep many congressional plaintiffs out of court entirely (including plaintiff here), it does not follow that equitable-discretion principles have no application in the rare case when a congressional plaintiff does have standing. The equitable-discretion doctrine is an independent principle that applies whether or not a case also involves a legislative standing defect. The Supreme Court, the D.C. Circuit, and this Court have applied equitable-discretion principles in cases without a congressional plaintiff. In Weinberger v. Romero-Barcelo , 456 U.S. 305 (1982), the Supreme Court employed a variant of equitable discretion to deny injunctive relief. Id. at 313 (“The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.”). Moreover, in its classic equitable-discretion cases, AT&T I and AT&T II, the D.C. Circuit invoked the doctrine in a lawsuit initiated by the Executive to enjoin compliance with a congressional subpoena. United States v. House of Representatives, 556 F. Supp. 150 (D.D.C. 1983), was also a suit initiated by the Executive. The issue of legislative standing - under either the old D.C. Circuit or the current Supreme Court precedents - would have played no role in any of those cases. Nor, as those cases make clear, is application of the doctrine limited to cases brought by individual members of Congress, as opposed to actions brought by congressional agents or others. AT&T I, AT&T II, and House of Representatives all involved actions brought by the Executive Branch. Moreover, as explained above, separationof-powers concerns are exacerbated, not eliminated, by the fact that plaintiff is an unelected agent, rather than a member, of Congress. It is precisely because plaintiff asserts an authority to circumvent the normal process for obtaining executive-branch materials and to enlist the courts in the process, that principles of equitable discretion apply with full force. The notion that a congressional agent, acting either sua sponte or on the behalf of two members, may embroil the courts in sensitive inter-branch disputes without any collective action by Congress is flatly inconsistent with the principles of equitable discretion. Moreover, plaintiff's and amicus Reid's assertion that applying the doctrine to plaintiff would be “unprecedented” merely reflects the fact that no congressional agent like plaintiff has ever sued an executive-branch official to enforce a document request. Without any meaningful evidence that Congress needs or desires the information, plaintiff is seeking to make this Court the first in history not only to entertain an inter-branch political dispute instigated by an unelected congressional agent, but also to order that executive-branch documents be turned over to any congressional entity. Established principles of equitable discretion should prevent this Court from taking either of those unprecedented steps. III. The Comptroller General Lacks Statutory Authority To Bring This Lawsuit Or To Review The NEPDG's Activities Even if this extraordinary lawsuit were justiciable and plaintiff had standing, he would lack statutory authority to bring this suit. Stripped to its essence, this is a lawsuit by an unelected agent of Congress seeking to force the Vice President to disclose the process by which he and other close presidential advisers formulated advice to the President, at the President's direction, to facilitate the President's execution of his constitutionally assigned functions. Whatever the ultimate resolution of that claim, it blinks reality for plaintiff to suggest that it does not confront the Court with sensitive and delicate constitutional questions of the highest order. Before confronting those profound questions, however, this Court must first resolve whether Congress, in fact, statutorily authorized a le-

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gislative agent - without direction from the Congress as a whole, a House of Congress, or a committee of Congress - to initiate such a constitutional confrontation. Plaintiff insists that such authority can easily be inferred from vague statutory language and selective citations of legislative history. Controlling precedent dictates a much more circumspect approach. A. The Vice President Is Not The “Head Of An Agency” Under 31 U.S. C. § 716 As explained in defendant's opening memorandum (at 22-32), plaintiff's litigation authority is statutorily confined to filing suit against a “head of [an] agency” to obtain “agency record[s].” 31 U.S.C. § 716(b). Plaintiff's central argument in response (Pl's. Reply 46) is that, because the statutory language could be read to include the President and Vice President, it must be so construed. That argument simply ignores the obvious separationof-powers difficulties with such a broad interpretation of plaintiff's right to sue. The separation-of-powers problems inherent in a lawsuit against the Vice President warrant the application of a clear-statement rule. Def's Mem. 23-32. An intent to allow suit against a unique constitutional officer should not be lightly inferred. Nevertheless, even absent such a clear-statement rule, this suit is precluded by the well-established rule that close presidential advisers like the Vice President (or groups of presidential advisers like the NEPDG) are not an “agency” under any sensible construction of that term. 1. Congress Has Not Expressly Stated That The Vice President Is An “Agency” The Supreme Court has made clear that, when Congress legislates “[i]n traditionally sensitive areas,” a “clear statement” of intent is required to “assure[] that the legislature has in fact faced, and intended to bring [the matter] into issue.” Will v. Michigan Dep't of State Police, 491 U.S. 58, 65 (1989) (quoting United States v. Bass, 404 U.S. 336, 349 (1971)); see also Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991) (clear-statement rule applies when a case could “significantly alter the balance between Congress and the President”). The Supreme Court applied the principle to the President in Franklin v. Massachusetts, 505 U.S. 788 (1992). “Out of respect for the separation of powers and the unique constitutional position of the President,” the Supreme Court required “an express statement by Congress before assuming it intended” to subject the President to the APA. Id. at 800-801. The Court found language that neither “explicitly excluded” nor “explicitly included” the President insufficient. Id. at 800. In light of the Vice President's unique constitutional role, those same principles require a clear statement in the statutory text before subjecting the Vice President to suit. In response, plaintiff points (Pl's. Reply 31-32) to statutory language that does not “ explicitly include[]” the President or the Vice President but rather expressly covers only agencies. See 31 U.S.C. § 101 (defining “agency” as a “department, agency, or instrumentality of the United States Government”); id. § 701 (agency definition “includes the District of Columbia government but does not include the legislative branch or the Supreme Court”). Not only is plaintiff's response inadequate to answer Franklin's clear-statement requirement, but the term “agency” cannot be read naturally to embrace the President or Vice President. The President and Vice President are constitutionally created officials with unique statuses, responsibilities, and positions in our constitutional structure, and bear no resemblance to common understandings of “departments,” “agencies,” or “instrumentalities.” Tellingly, no court has ever held that the President or Vice President is a department, agency, or instrumentality. A long line of controlling judicial decisions has held exactly the opposite. See, e.g., Franklin, 505 U.S. at 800-801; Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993); Armstrong v. Executive Office of the President, 90 F.3d 553, 556 (D.C. Cir. 1996), cert. denied, 520 U.S. 1239 (1997); Haddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995); Schwartz v. United States Dep't of Treasury, 131 F. Supp. 2d 142, 147 (D.D.C. 2000), aff'd, 2001 WL 674636 (D.C. Cir. May 10, 2001): see also Def's. Mem. 32-36. Those decisions make

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clear that, absent explicit congressional direction, the term “agency” will not be construed to include individuals or entities “whose sole function is to advise and assist the President.” Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980). Plaintiff insists that the Vice President is an “instrumentality.” But Congress did not say so, either explicitly or implicitly. The term “instrumentality” is not defined in the statutes dealing with GAO or even the Dictionary Act, 1 U.S.C. § 1. The only hint as to the meaning of an “instrumentality” in title 31 comes from a committee report for the 1982 re-codification of title 31, which says that the term “instrumentality,” as used in the definition of “agency,” does not include “entities such as the Tennessee Valley Authority.” H.R. Rep. No. 97-651, at 25 (1982), as reprinted in 1982 U.S.C.C.A.N. 1895, 1919. If the term does not embrace an entity like the TVA, [FN5] which is commonly considered to be a governmental “instrumentality,” it is far from “obvious” (Pl's. Reply 45 n.22) that it could embrace individuals that no court has ever held to be an instrumentality. In any event, the very need to hunt through legislative history for clues as to the meaning of “instrumentality” makes clear that this Court should not assume that Congress intended to subject the President or the Vice President to intrusive regulation that it was not even willing to impose on the TVA. FN5. See, e.g., Tennessee Power Co. v. TVA, 306 U.S. 118, 134 (1939): TVA v. EPA, 278 F.3d 1184, 1189 (11th Cir. 2002). Plaintiff also relies on the supposed breadth of the term “establishment,” which was the catch-all term in the pre1982 version of title 31. Pl's. Reply 46. Obviously, a clear-statement requirement cannot be satisfied by unclear language that used to be, but is no longer, in the statute. In any event, the Vice President, like the President, is a constitutional officer, not an establishment. Likewise, the NEPDG is not an establishment because “[t]he President does not create an ‘establishment’ *** every time he convenes a group of senior staff or departmental heads to work on a problem.” Meyer, 981 F.2d at 1296. Lacking the requisite statutory text, plaintiff proffers part of one paragraph from one committee report in the statute's legislative history. That effort is unavailing. “If clarity does not exist” in the statutory text, “it cannot be [FN6] supplied by a committee report.” United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992). FN6. In any event, the Senate Report on which plaintiff focuses so much attention cannot be trusted. Its premise is that suits “against the President and his principal advisers *** for information which would not be available under” FOIA would be “preclude[d], “ S. Rep. No. 96-570, at 8 (1980), reprinted in 1980 U.S.C.C.A.N. 732, 739, but the certification power granted by the statute simply does not provide the protection for presidential advisers that FOIA does. Def's. Mem. 29-30. In response, plaintiff says Congress must not have intended the statutory certification power to be co-extensive with FOIA because the Report did not say the President could preclude a suit “for all information that would not be available under FOIA.” Pl's. Reply 43. But, of course, the Report also could have been more clear had it said the President could preclude a suit “for some of the information that would not be available under FOIA.” The ambiguity arising from the Report's failure to specify “all” or “some” undercuts, rather than supports, plaintiff's search for statutory clarity. Moreover, it is surely more likely that Congress intended to grant protection as broad as FOIA (i.e., protection that would completely prevent any suits against presidential advisers), since the D.C. Circuit held, shortly before § 716 was adopted, that FOIA's exclusion for presidential staff was necessary to avoid raising “a constitutional issue of separation of powers.” Ryan v. Department of Justice, 617, 788 n. 19 (D.C. Cir. 1980).

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Unable to satisfy the clear-statement rule, plaintiff unsuccessfully tries to circumvent it. Plaintiff first claims (Pl's. Reply 35, 36) that the clear-statement rule does not apply to information-disclosure statutes, because such statutes do not seriously implicate the separation of powers. That remarkable argument is contradicted by common sense, the caption of this case, and a host of Supreme Court cases recognizing the separation-of-powers problems inherent in enlisting the courts in inter-branch document disputes. See, e.g., Public Citizen, 491 U.S. at 452; AT&T I, 551 F.2d at 394 (judicial intervention in a document dispute could forever “tilt the scales” of the “constitutional balance” between the branches). In emphasizing that the President “has been subject to congressional demands for information since the founding of the Republic” (Pl's. Reply 37), plaintiff once again ignores the critical distinction recognized by the Supreme Court in Reed between congressional efforts to obtain documents through the normal give and take between the political branches, and efforts to embroil the courts in those disputes. The latter are rife with separation-of-powers difficulties, and § 716 concerns nothing but the latter. Plaintiff contends, secondly, that the clear-statement principle applies only when legislation “restrict[s] or regulat[es] presidential action.” Pl's. Reply 36. That is a distinction without a difference. Regulating the manner in which the President and his advisers obtain, retain, or provide access to information, and forcing him to turn over documents, does restrict and regulate presidential action and implicate his constitutional powers. See Armstrong v. Bush, 924 F.2d at 290; Association of Am. Physicians & Surgeons v. Clinton, 997 F.2d 898, 910-911 (D.C. Cir. 1993) (“AAPS”) (“disclosure of the real information-gathering process” of presidential advisers would “inevitably” compromise the “formulation of advice” to the President); FEC v. NRA Political Victory Fund, 6 F.3d 821, 826 (D.C. Cir. 1993) (recognizing that the “mere presence” of legislative observers can “influence” [FN7] executive decision-making process). FN7. Plaintiff's contention (Pl's. Reply 39) that no clear statement is necessary because § 716 reflects an alleged “compromise” between the Executive Branch and Congress is of no moment. A statute is not “somehow immunized from constitutional scrutiny because the Act *** was passed by Congress and approved by the President.” INS v. Chadha, 462 U.S. 919, 942 n.13 (1983). Plaintiff also notes that, more than a decade before Franklin, the Supreme Court did not explicitly apply a clearstatement rule in Kissinger. Pl's. Reply 38. But it is of little help to plaintiff that the Court did not apply such a rule in a case where it was unnecessary, because the Court found clear congressional intent to exclude the President's advisers. What plaintiff needs is a case holding that the President and Vice President are subject to statutory regulation of their confidential communications in the absence of explicit congressional direction. No such case exists. Lastly, plaintiff claims that the clear-statement rule does not apply to the Vice President. Pl's. Reply 40-42. That argument fails. The Vice President's position, like the President's, is constitutionally “unique.” Def's. Mem. 24-25. Indeed, courts and statutes have consistently carved out both the President and the Vice President for differential treatment from federal agencies. See Armstrong v. Executive Office of the President, 90 F.3d at 556 (distinguishing Presidential and Vice Presidential records, covered by the Presidential Records Act of 1978, from agency records, covered by the Federal Records Act of 1950); Armstrong v. Bush, 924 F.2d at 286 n.2 (similar); 44 U.S.C. § 2207 (records of the Vice President are classified as presidential records); 3 U.S.C. § 112. Furthermore, when the Vice President is not serving as Acting President, his primary executive responsibilities are those that have been assigned to him by the President. As such, his “operational proximity” to the President warrants the highest level of protection from outside interference. AAPS, 997 F.2d at 910. Moreover, in the context of this lawsuit, the distinction between the President and Vice President is one of form

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rather than substance. The structure of § 716 presupposes that the Comptroller General's lawsuit will be brought against the “agency” that is responsible for the creation of the requested “record[s].” It is the President who directed the NEPDG to formulate policy advice for him; the President who sought that advice to assist the exercise of his presidential duties; the President who was the ultimate recipient of the advice; and the President who would use that information in a manner that (plaintiff alleges) somehow implicates the Legislative Branch's interests. The structural constitutional principles animating the clear-statement rule cannot be avoided by the simple expedient of naming as defendant the individual who provides the President advice or “records,” rather than the President who receives and uses the advice or “records.” Indeed, even plaintiff cannot hew to his own formalistic and ultimately unworkable distinction between the President and the Vice President. His reading of the statute requires the conclusion that the President himself is also an “agency,” even though Congress did not explicitly say so. Pl's. Reply 46. That alone reveals the unprecedented nature of plaintiff's claim; if the President had made himself the head of the NEPDG, plaintiff would assert the same authority to sue under § 716. Indeed, plaintiff's favorite passage of legislative history addresses suits against the President himself. See note 6, supra. Moreover, plaintiff's bottom line is the even-more-striking claim that the President cannot “strip the Comptroller General of a judicial remedy that would otherwise be available if the President assigned the same responsibilities to a Cabinet officer.” Id. at 41. Under plaintiff's reading, the question would not be whether the Comptroller General is actually suing an agency head, but whether he might have been able to sue one if the circumstances were different. Thus, according to plaintiff, the President's chief of staff, his domestic policy adviser, or the White House Counsel will each be subject to suit by the Comptroller General whenever they are given “responsibilities” that the President might instead have “assigned *** to a Cabinet officer.” Ibid. Such counterfactual analysis cannot be what Congress contemplated [FN8] when it used the term “agency.” FN8. Even Comptroller General Staats, on whose authority plaintiff relies, recognized the central difference between the President and agencies. After pointing out that “any President can prevent information in his own possession from being made available to the Congress,” he said: “But we don't see this as the primary problem. I think our primary problem is with the agencies ***.” Strengthening Comptroller General's Access to Records: New Procedures for Appointment: Hearings Before a Subcomm. of the House Comm. on Gov't Operations, 95th Cong., 2d Sess. 45 (1978) (emphases added). 2. Entities That Only “Advise And Assist The President” Are Not “Agencies” As in the Supreme Court's Kissinger decision, this Court can resolve the statutory question without resort to a clear-statement rule. Indeed, all the justifications for the clear-statement rule suggest, a fortiori, that § 716' s references to “agency” should not be construed as applying to those - like the Vice President and the NEPDG as a whole - whose “sole function is to advise and assist the President.” Kissinger, 445 U.S. at 156. This principle is clearly established in the context of FOIA, the APA, and other statutes. Def's. Mem. 32-36. There is no reason to believe that FOIA's definition of agency - which applies to any “authority of the Government” including any “establishment in the executive branch,” 5 U.S.C. §§ 551(1), 552(f)(1) - is any narrower than the definition of “agency” in title 31 - which used to refer to “establishment[s],” Budget and Accounting Act, § 2, 42 Stat. 20 (1921), and now refers to “instrumentalit[ies],” 31 U.S.C. § 101. Rather than attempt to claim that the NEPDG would be an “agency” under the test set forth in Meyer v. Bush, 981 F.2d at 1288, plaintiff simply says that “FOIA serves an entirely different purpose than § 716.” Pl's. Reply 44. In reality, however, both statutes involve disclosure and both employ terms that have established meanings in the structure of the Executive Branch. Plaintiff does not, and cannot, explain why Congress's “different purpose” means that the 1921 use of the term

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“establishment” (in the GAO statute) had a longer reach than the 1974 use of the term “establishment” (in the revision to FOIA). The Vice President is not naturally understood to be an agency, let alone the head of an [FN9] agency, and so, even without resort to a clear-statement rule, the statute does not reach the Vice President. FN9. Plaintiff's reliance (Pl's. Reply 5-6, 8-9) on the certification mechanism of § 716(d)(1) is misplaced. Because the Vice President is not the “head of [an] agency,” and because the records plaintiff seeks are not “agency record[s],” the lawsuit-precluding exception in § 716(d)(1) is inapplicable to this case. B. Section 712 Does Not Apply Because The Comptroller General Is Not Investigating The “Use Of Public Money” Although § 716 contains the only provision that could conceivably authorize plaintiff to file this lawsuit, he must look elsewhere to establish his rights of access to the “agency records” he seeks. Plaintiff repeatedly displays a limitless conception of his own authority, under which every expenditure of government time or money, and proposals as well as results, come within his bailiwick. Plaintiff's failure to perceive any limits on his own authority makes little practical difference if he relies on non-judicial means of enforcing his rights, as he has done until filing this unprecedented suit. This Court, therefore, can avoid opining on the precise contours of plaintiff's investigative authority (and forever “tilting the scales” with respect to that authority) by limiting his authority to sue under § 716 in accordance with well-recognized principles of statutory construction. But if plaintiff can sue any executive official up to and including the President to effectuate his investigative demands, then the statutory text must be construed to place meaningful limits on that investigative authority. Plaintiff previously invoked both 31 U.S.C. § 712(1) and 31 U.S.C. § 717(b), but now he finds the wellspring of his access rights in § 712, which dates from the original establishment of GAO in 1921. Pl's. Reply 47. Section 712(1) empowers the Comptroller General to “investigate all matters related to the receipt, disbursement, and use of public money.” In plaintiff's view, it entitles him to investigate, “inter alia, the purpose, efficiency, and legality” of all of the NEPDG's “uses” of public funds and, to that end, to probe into “[t]he subjects the NEPDG discussed at its meetings,” “how many meetings focused on one subject versus another,” and how the Vice President and his staff decided with whom they would meet. Pl's. Reply 47, 49; Pl's. S.J. Mem. 25-26. Plaintiff thus reads the term “use” in § 712(1) as vastly expanding the scope of his authority beyond routine investigations of how money was expended and converting it into a substantive authority to pass policy judgment on the “efficiency” of governmental programs and deem their “purpose” inappropriate. Under plaintiff's reading, the same authority would allow him to review memoranda and meetings between law clerks and their judges in the guise of assessing their “efficiency” and whether government pens and pencils could better be dedicated to other “purposes.” Whether and how often the President should hold Cabinet meetings, how long particular matters should dominate the agenda, and who should attend those meetings would also appear to fall in the Comptroller General's own conception of his powers - under his alleged right to “determine how time, and therefore money, was spent.” Pl's. S.J. Mem. 26. Elementary canons of statutory construction foreclose that sweeping and constitutionally troublesome reading of § 712(1). “Where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114-115 (2001) (emphasis added); see also Gutierrez v. Ada, 528 U.S. 250, 255 (2000) (“words and people are known by their companions”). Applying that principle, the term “use” in § 712(1) must share the financial connotations of its companions “receipt” and “disbursement.” The ability to po-

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lice the “use” of federal money means tracking its actual expenditure, not superintending every policy judgment made by officials using federal money and certainly not probing the confidential communications underlying those policy decisions. As explained in defendant's opening memorandum (at 38), moreover, plaintiff's expansive reading of § 712(1) would render superfluous subsequent statutory grants of authority to the Comptroller General, such as § 717(b)'s power to evaluate program results. Perhaps recognizing the insensible implications of his position, plaintiff now appears to focus on “how public money was spent.” Pl's. Reply 47. However, the Vice President has previously provided plaintiff with documents pertaining to the NEPDG's costs (Def's. Mem. 37), and thus has advised him “how public money was spent.” The term “use” does not give the Comptroller General license to probe deeper. Plaintiff's reliance (Pl's. Reply 47) on the phrase “matters related to” the “use” of federal money to broaden the scope of his authority is likewise unavailing. Like “use,” “related to” must be read in context. See Morales v. Trans World Airlines, Inc., 504 U.S. 374,390 (1992) (the phrase “related to” is not all-encompassing; some connections are too “tenuous” to be related). Moreover, the very use of the term “related to” presupposes that some matters will be unrelated to the use of federal funds. Yet the fundamental problem with plaintiff's construction of “use” and “related to” is that nothing appears to fall outside his asserted authority. For the statutory terms to have any constraining effect, the matters investigated by plaintiff accordingly must be tied to the accounting and auditing functions of tracking costs - the “receipt, disbursement, and use of public money” - and not evaluating the content of every conversation, communication, or action of every federal employee, every work day. Plaintiff's focus on § 712(1) as the primary source of his access-to-records authority is also significant because, for decades, it was clear that, under that provision, GAO lacked untrammeled access to White House documents. As Comptroller General Campbell candidly explained in 1962: [W]e are certain you understand that [GAO] investigations of White House activities are not subject to the same techniques as those conducted in the various departments and agencies. Files of the White House Office, with the exception of financial records, are normally not available to us. Also, White House personnel are not always available for interview. This has been the situation in all recent Administrations. Letter from Comptroller General Joseph Campbell to Rep. John W. Byrnes, B-142983, at 2 (Sept. 18, 1962) (attached below as Exhibit A). Comptroller General Campbell tellingly carved out “ financial records ” as the only “[f]iles of the White House Office” that were “normally available” to GAO (and like Comptroller General Staats, see note 8, supra, he clearly differentiated his authority vis-à-vis the White House from his authority visà-vis “departments and agencies “). But, under plaintiff's view, all those other “files” would have been “related to the *** use of public money.” In reality, the Comptroller General's authority extends no farther today that it did in 1962. Section 712(1) simply cannot justify the sweeping investigative authority that plaintiff claims. C. The Comptroller General Is Not Evaluating The Government Carries Out Under Existing Law” 1. The NEPDG Did Not Carry Out A “Program Or Activity” “Under Existing Law” The Comptroller General also claims that the NEPDG was a “program or activity” carried out under “existing law.” 31 U.S.C. § 717(b). The structure and context of that statutory provision, however, reveal that it applies only to programs or activities undertaken pursuant to extant statutory law. Def's. Mem. 40-45. Indeed, plaintiff fails to identify anything in the common meaning of those terms that extends them to every presidential exercise of a constitutional prerogative independent of an existing statutory provision. The legislative history confirms

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that § 717(b)'s reference to “existing law” means statutory law, id. at 42, as do GAO documents and the state[FN10] ments of previous Comptrollers General. Id. at 41-44 & nn.21-24. FN10. Plaintiff claims that those sources said only that “the primary focus” of program-results evaluations is to evaluate statutory programs. Pl's. Reply 55. Despite his insinuation that this distinction is important, he cites nothing that says the evaluation of non-statutory programs is a “secondary” (or lesser) focus. Moreover, internal GAO documents have continued to recognize the fact that “programs” are defined by statute. For example, in 1999, GAO explained matter-of-factly that “Congress mandates the programs that agencies undertake and monitors their progress ***.” GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1, at 9 (Nov. 1999) (<http:// www.gao.gov/special.pubs/ai00021p.pdf>). Plaintiff answers that it is difficult to define “‘existing’ to mean ‘statutory.”’ Pl's. Reply 53. But the real ques[FN11] tion is whether “law” means statutory law. There is some ambiguity as to whether the term law, unmodified, includes constitutional law. Sometimes “law” includes constitutional law; sometimes it does not. See, e.g., U.S. Const, art. III, § 2, cl. 1 (referring to “this Constitution, the Laws of the United States, and Treaties”); 28 U.S.C. § 1331 (referring to “the Constitution, laws, or treaties of the United States”). But here the modifier “existing” makes clear that “law” refers to statutory law. While the statute books are constantly changing, the Constitution has changed only 27 times in over 200 years. By limiting plaintiff's role to “existing law,” therefore, Congress logically was focused on the constantly changing statutory law. See Def's. Mem. 44 n.24 (citing statutes where “existing law” can refer only to statutory law). FN11. Thus, plaintiff misses the point when he dismisses the 1970 House Report as dealing with “the term ‘laws,’ not the phrase ‘existing law.”’ Pl's. Reply 54 n.26. Similarly, defendant agrees that “existing” is primarily intended to distinguish between the roles of GAO and CRS. Id. at 57. That does not change the fact that the “programs *** under existing law” that GAO may evaluate are established by statute, and GAO is supposed to help Congress determine whether it wants to make changes to those already-established statutory programs. Plaintiff dedicates substantial effort to insisting that Congress has “surveillance” and “oversight” responsibilities. Pl's. Reply 54-57. But any such powers must be defined and cabined by the scope of Congress's legislative authority. He also asserts that Congress can bootstrap itself into authority over any governmental activity by announcing “the intent of Congress” or Congress's ” declar[ation] that [something] is the policy of the United States.” Id. at 54. Of course, as explained below in Part IV.B.l (and at Def's. Mem. 54 & n.32), Congress's investigative power does not extend beyond those areas where Congress may legislate, and thus does not extend to areas within the exclusive province of the Executive, the Judiciary, or the States, which are granted exclusive [FN12] authority in certain areas under the “existing” Constitution. See, e.g., U.S. Const. amend. XXI, § 2. In any event, plaintiff's argument simply begs the question of whether Congress intended for GAO to evaluate the results of statutorily mandated programs to assist Congress with its prospective legislative needs, or whether it intended for GAO to superintend any subject that could be addressed in a Sense-of-the-Senate resolution, let alone the exercise by the Judiciary, the Executive, and the States of their exclusive powers under the Constitution. FN12. Plaintiff cites hypothetical and actual GAO studies dealing with military and foreign-affairs powers. Pl's. Reply 53-56 & nn.28-29. Those are, however, areas where Congress or the Senate has legislative authority to enact and amend statutory law. The NEPDG involved the exercise of the Presid-

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ent's exclusive constitutional powers - namely, the formulation of administration policies - an area where Congress may not probe. In addition, several of the GAO studies on which plaintiff relies were based entirely on publicly available information (e.g., The Use of Presidential Directives to Make and Implement U.S. Policy, GAO/NSIAD-89-31, at 1 (Dec. 1988)), or reflect that the Executive Branch refused to provide information (e.g., Executive Branch Consultations With Congress Did Not Fully Meet Expectations in 1999-2000, GAO-01-917, at 3 (Sept. 2001). They thus do nothing to strengthen plaintiff's hand. Plaintiff's citation to two examples where Congress has investigated presidential pardons, Pl's. Reply 57 n.31, does not prove that GAO may conduct such investigations. In fact, a computer search of the full text of all of the GAO reports since 1975 that are available on GAO's website does not reveal a single one that studied clemency or pardons. See http://www.gao.gov:8765/indexfull.html. As an alternative, plaintiff insists (Pl's. Reply 58-60) that the NEPDG operated pursuant to statute. It did not. The President established the NEPDG to make policy recommendations to him, Compl. Exh. A ¶ 2, not to “carr[y] out” any statutory programs or activities, 31 U.S.C. § 717(b). Plaintiff claims that the NEPDG provided many recommendations to the President “concern[ing] the executive branch's administration of existing laws.” Pl's. Reply 58 (citing the Clean Air Act, the Energy Policy and Conservation Act, and the Outer Continental Shelf Lands Act). Yet, the NEPDG's recommendations were obviously not the “results” of any programs under those statutes. A policy recommendation to the President that he should order a change in the way that the Clean Air Act is administered, is not an “activity *** carrie[d] out under” the Clean Air Act. 31 U.S.C. § 717(b). It is a policy recommendation carried out, not under the Clean Air Act, but pursuant to the President's constitutional authority to “require” opinions from his advisers and to prepare “Measures” that he might recommend to Con[FN13] gress. U.S. Const. art. II, § 2, cl. 1; id. art. II, § 3. FN13. Plaintiff misreads Alaska v. Carter, 462 F. Supp. 1155 (D. Alaska 1978). Pl's. Reply 59-60. In that case, even though the Secretary of the Interior was advising the President about the exercise of the President's own statutory powers, the court invoked the constitutional-doubt doctrine to exempt the Secretary's recommendations from statutory requirements that would otherwise apply to the Secretary's own actions. Thus, the constitutional elements of the Opinion Clause completely trumped the context of the statutory function about which advice was being provided. That is precisely defendant's point. 2. The NEPDG's Activities Were Not The “Results” Of A Program Or Activity Section 717(b) does not empower the Comptroller General to police every stage of every federal program or activity - he may evaluate only their “results.” The NEPDG's provision of advice and recommendations to the President, however, is at the far end of the spectrum that starts with policy formation and ends with results under an enacted program. If such policy proposals qualify as results, it is hard to see what is off-limits for a GAO investigation. Plaintiff first responds that the phrase “results of” simply prevents the Comptroller General from evaluating programs or activities “in the abstract, or based on criteria of GAO's own choosing.” Pl's. Reply 50. That makes no sense. The word “results” connotes nothing about the review criteria to be applied. It instead limits what may be reviewed (under whatever criteria GAO would apply). Only the culmination of agency action may be evaluated, not those tentative intermediate steps that lack administrative or regulatory impact. See Dalton v. Specter, 511 U.S. 462, 469-470 (1994) (recommendations to the President are not reviewable under the APA because they “carr[y] no direct consequences” and are “tentative” unless and until the President adopts them); Def's Mem. 45 (defining “result”). Thus, plaintiff's persistent and exclusive focus on “the process by which the National Energy

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Policy was developed,” Compl. Exh. I at 1 (emphasis added), rather than the “results” of the President's solicitation and receipt of advice (which were provided to Congress in the NEPDG's public report), reveals how untethered this lawsuit is from statutory text. Beyond that, plaintiff's point that the Comptroller General cannot review the President's “program[s] or activit[ies]” in the “abstract” is exactly defendant's point. Plaintiff also argues that “results” must mean “processes and procedures” because GAO has investigated such processes in the past. Pl's. Reply 51. That argument simply demonstrates the key difference between typical inter-branch give and take and judicially-enforced rights. Any time the Executive formulates a legislative proposal, there are practical reasons to share information with Congress and its agents, because Congress possesses the authority to refuse to act on the legislative proposal. But it is one thing for the Executive to share information with Congress, even in the absence of any obvious congressional authority to demand the information, to facilitate passage of an executive proposal. It is quite another thing to recognize a judicially-enforceable right to meddle in confidential executive-branch deliberations that lead to policy proposals. Congress's ability to refuse to act on executive proposals gives it all the power it needs; it does not need a judicially-enforceable right that would forever tilt the separation-of-powers balance. Finally, plaintiff contends (Pl's. Reply 52) that a perceived congressional interest in “the degree of public participation in the development of national energy policy” generates a “result” for the GAO to investigate. But if Congress's supposed interest in process makes all processes a result, then the word “results” in § 717(b) becomes meaningless. Congress should not be able to co-opt any executive-branch activities simply by imposing [FN14] goals on those activities that are unrelated to the President's purpose in having those activities occur. FN14. For the same reason that courts require a clear statement before concluding that close presidential advisers fall within generic statutory references to “agency,” see Part III.A.I, supra; Def's. Mem. 47-48, Congress's use of the general term “Government” in § 717(b) is insufficient to trigger coverage of the purely advisory activities of close presidential advisers like the Vice President or the NEPDG. Plaintiff's only response is to argue (again) (Pl's. Reply 63 n.37) that clear-statement rules do not apply to information-disclosure statutes. That argument has no more traction in this context than it does under § 716 and should accordingly be rejected. IV. The Comptroller General's Enforcement Action Violates The Constitutional Doctrine Of Separated Powers As defendant established in his opening memorandum, plaintiff's efforts to intrude upon the process by which the President receives advice from his closest advisers violate the constitutional separation of powers in two distinct ways. First, whether viewed through the per se test applicable to the exercise of express Article II powers (Def's. Mem. 52-57), or the balancing test that has been applied elsewhere (id. 57-62), Congress may not authorize its agent to review the manner in which the President and his closest advisers develop the President's legislative and policy proposals. Second, Congress may not aggrandize its own powers by granting a legislative agent the power to seek judicial enforcement against the Executive Branch. Id. at 62-64. A. Neither Statutory Certification Nor An Assertion Of Executive Privilege Is A Necessary Predicate For Addressing Constitutional Problems Plaintiff's separation-of-powers argument is based primarily on the mistaken proposition that there can be no constitutional threat to the Executive Branch in this case because the President previously “had the statutory means to certify” that NEPDG documents should not be disclosed, and because he “could still seek to assert

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[executive] privilege with respect to those documents.” Pl's. Reply 70.

[FN15]

FN15. See also Pl's. Reply 63 (“requiring the President to invoke the statutory certification mechanism or to assert privilege”); id. at 71 (“the executive branch had the ability to preclude suit through a certification, and could still attempt to assert privilege”); id. at 72 (“absent a certification or any assertion of executive privilege, the Comptroller General is entitled to the documents”); id. at 73 (“the ‘burden’ of invoking the certification provision or asserting privilege”). Plaintiff makes the same claim elsewhere. See id. at 5-6, 8-9, 15, 30, 48. This Court is not required to wait for a formal claim of executive privilege before considering defendant's constitutional arguments. As Judge Gesell aptly observed, a claim that no constitutional questions are raised if the President has not invoked an executive privilege “misses the point.” Nader v. Baroody, 396 F. Supp. 1231, 1234 n.5 (D.D.C. 1975). “It is not that the construction of the Act plaintiff urges would impinge on the privilege of confidentiality for executive communications itself, but that it might impinge on the effective discharge of the President's powers *** which raises constitutional questions.” Ibid. In fact, the case law makes clear that constitutional separation-of-powers concerns are broader than specific executive privilege concerns. See Nixon v. Administrator of General Services, 433 U.S. 425, 446 (1977) ( “Nixon II”): Common Cause v. Nuclear Regulatory Comm'n, 674 F.2d 921, 935 (D.C. Cir. 1982). Indeed, in both Public Citizen and AAPS, the Supreme Court and the D.C. Circuit based their holdings on constitutional concerns about impinging on the confidentiality of executive-branch consultations (see Public Citizen, 491 U.S. at 466-467; AAPS, 997 F.2d at 909-911) - even though there had been no assertion by the President of an executive privilege in either case. Moreover, plaintiff's suggestion that the possibility of invoking executive privilege avoids separation-of-powers problems does not withstand inspection. To the extent that a statute or an application of a statute to the President or Vice President inevitably implicates only privileged interests, that fact hardly indicates the absence of a separation-of-powers problem. Quite to the contrary, a statute (or an application of a statute) that routinely implicates highly sensitive executive-branch deliberations is constitutionally suspect on that score, see AAPS, 997 F.2d at 910, and its application to those with greater proximity to the President is more problematic, see id.; Meyer, 981 F.2d at 1293. Plaintiff's reliance on executive privilege is thus overdrawn, because it is precisely those who have the greatest proximity to the President who are most protected by executive privilege. See In re Sealed Case, 121 F.3d 729, 752 (D.C. Cir. 1997). Finally, plaintiff's argument ignores the practical separationof-powers consequences of invoking executive privilege. The Executive must occasionally invoke the privilege in dealing with Congress; it should not routinely be forced to invoke it in litigation with a congressional agent. Plaintiff's reliance on the certification power granted by § 716(d)(1)(C) is equally mistaken. The certification power has no relevance to this case. The statute required the certification power to have been asserted within 20 days of the Comptroller General's July 18, 2001 report, long before this lawsuit was filed. See 31 U.S.C. § 716(d)(1)(C). At that time, however, the Vice President had repeatedly asserted that the Comptroller General had no authority to investigate the executive branch “function of developing recommendations for policy and legislation.” Compl. Exh. J at App. 2. The Vice President denied the fundamental validity of the Comptroller General's sweeping request for documents and specifically stated that § 716 did not apply at all because the Vice President is a constitutional officer and not an “agency head” to whom § 716 applies. It is hardly surprising that, having concluded the § 716 was completely inapplicable, the Vice President did not seek to use the exception in § 716 relating to certification by the President or the Director of the Office of Management and Budget. Moreover, the fact that the Vice President did not seek certification under § 716(d)(1)(C) in August 2001 cannot be thought to estop the Vice President from arguing that judicially-compelled disclosure to GAO would now be

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unconstitutional.

[FN16]

FN16. Plaintiff cites only two cases that could even arguably impose such a requirement (Pl's. Reply 71, 72), but those cases each involved statutory exemptions that could be invoked in the future, or exemptions whose applicability had not yet been determined. See Pacific Legal Found. v. Council on Envtl, Quality, 636 F.2d 1259, 1265 (D.C. Cir. 1980) (noting that Council could, in the future, decide to close meetings under the Sunshine Act; “It may be that by closing certain meetings, the Council could avoid possible constitutional problems. We apply the settled rule that federal courts will not anticipate a question of constitutional law ***.” (internal quotation marks omitted)); Soucie v. David, 448 F.2d 1067,1072 (D.C. Cir. 1971) (remanding to district court with instructions to consider executive-privilege question “[o]nly if the Act seems to require disclosure”). Moreover, unlike in those cases, the “remedy” of statutory certification under § 716 has more stringent requirements than its non-statutory alternative, both in terms of when it must be asserted and what must be proved. In fact, Public Citizen and AAPS are again fatal to plaintiff's reliance on the absence of certification. Both of those courts based their holdings on constitutional concerns, even though the statute at issue, the Federal Advisory Committee Act (“FACA”), provided mechanisms that theoretically could have been invoked to avoid disclosure. See 5 U.S.C. app. § 10(b) (incorporating disclosure exemptions from FOIA); id. § 10(c) (incorporating Sunshine Act's closed-meeting provisions). Indeed, the President has a fundamental ability to avoid FACA by limiting membership on a committee to government officials. See 5 U.S.C. app. § 3(2). As this suit demonstrates, however, under plaintiff's view, the Executive has no comparable opportunity to avoid plaintiff's asserted authority to sue anyone, including the President, for materials on virtually any subject. Finally, plaintiff's blinkered focus on certification and affirmative invocation of executive privilege is also contradicted by the privilege cases on which he relies. He admits that presidential communications are “presumptively privileged” (Pl's. Reply 69-70), but his analysis would completely reverse that presumption. Rather than requiring the legislature to demonstrate a need for the executive-branch documents at issue, as [FN17] United States v. Nixon would appear to dictate, see 418 U.S. 683, 708 (1974) ( “ Nixon I ”). plaintiff claims that the Executive must assert the privilege first, or else “the Comptroller General is entitled to the documents.” Pl's. Reply 72. In other words, plaintiff would require the Executive to strike first or completely forgo his shield against any claim, without regard to the alleged need for disclosure. FN17. See also In re Sealed Case, 121 F.3d at 753-756; Senate Select Comm., 498 F.2d at 730-731 (when a request is made by the grand jury, it must make its showing of need “before a generalized claim of confidentiality can be said to fail,” and that “presumption against any judicially compelled intrusion into presidential confidentiality, and the showing requisite to its defeat, hold with at least equal force” in a suit brought by a congressional agent). B. The NEPDG's Activities Are Not Legitimately Subject To Congressional Investigation 1. The NEPDG Operated Pursuant To The President's Exclusive Article II Powers Defendant's opening memorandum demonstrated that Congress, and therefore plaintiff, has no power to investigate the President's exercise of his exclusive Article II functions. See Def's. Mem. 52-57. That argument is straightforward: (1) Congress “cannot inquire into matters which are within the exclusive province of one of the other branches,” Barenblatt v. United States, 360 U.S. 109, 111-112 (1959); (2) actions taken pursuant to the Recommendations and Opinion Clauses of Article II are within the exclusive province of the President; and (3)

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the NEPDG functioned pursuant to those constitutionally reserved powers. Because this argument focuses on the extent of Congress's legislative powers, it is not privilege based. Moreover, balancing of interests is unnecessary because, in those areas where Congress has no legislative power, it has no investigative power whatsoever - regardless of how intrusive any particular investigation might be. Plaintiff admits that Congress has no legislative (and therefore investigative) powers in areas where “the President or the judiciary has exclusive authority.” Pl's. Reply 68. But, if one reads the fine print, it is hard to find any executive power that plaintiff actually believes is exclusive. Compare Pl's. Reply 57 n.31 (asserting congressional oversight authority over specific pardon decisions), with id. at 68 n.40 (disclaiming this same authority). Accordingly, it is not surprising that plaintiff denies that this case “involve[s] an investigation into a plenary presidential *** power.” Id. at 68 n.40. To do so, however, plaintiff is forced to trivialize the importance of the Recommendations and Opinion Clauses to the structure of the Constitution (id. at 65-67); to create and knockdown a strawman Take Care Clause argument (id. at 67-68); to exaggerate Congress's appropriations powers (id. at 65 & n.38); and to claim (incorrectly) that the NEPDG did not operate pursuant to the President's constitutional powers to develop policy and legislation (id. at 74). The Recommendations and Opinion Clauses are both important textual indications of the President's powers to gather information and develop and propose policy. Def's. Mem. 52-54. Plaintiff views the Recommendations Clause as serving merely to “squelch” objections from Congress when the President makes recommendations, and he asserts that there is nothing exclusive about the constitutional power to recommend legislation to Congress. Pl's. Reply 66-67, 69; see also Reid Amicus Br. 33-34. Yet, the Recommendations Clause is rendered trivial only by plaintiff's excessively crabbed reading of it, which would grant the President nothing more than the right given every other person under the Petition Clause (U.S. Const. amend. I), the right to hand over recommendations to Congress without penalty. The natural reading of the Recommendations Clause, however, is that it gives the President not only the power to make recommendations, but also the logically anterior ability to develop “Measures” and then evaluate which ones he finds to be “necessary and expedient.” U.S. Const. art. II, § 3; see also Def's. Mem. 53 n.31. Furthermore, the power is certainly exclusive to the President, because he is the only person able to determine what “ he shall judge necessary and expedient.” U.S. Const. art. II, § 3 (emphases added). The Clause gives the President the discretion to determine what he shall convey to the Congress. Moreover, to ensure that the President maintains control over the recommendations that bear his imprimatur, he needs exclusive control over the process by which he develops his recommendations. As a result, that process is constitutionally vested “within the exclusive province of one of the other branches” besides Congress. Barenblatt, 360 U.S. at 111-112. In dealing with the Opinion Clause, Plaintiff once again cannot escape his Congress-centric view of the universe. Although he acknowledges that the Opinion Clause “establishes *** the President's primacy within the executive branch,” he views that provision and the entire “unitary structure of the executive” as an effort to “enhance presidential accountability” to Congress. Pl's. Reply 66. But the founders did not devise a unitary executive and give the President exclusive powers in order to facilitate congressional “oversight.” If they had, we would not have developed a tradition whereby the President (who, as the embodiment of an entire branch of government, is uniquely politically accountable) never appears at congressional “oversight” hearings. Indeed, as the debates in the Constitutional Convention demonstrate, the Opinion Clause was the result of an express decision to grant the President a power free from congressional or judicial participation or regulation. Def's. Mem. 52. Where the Constitution grants exclusive authority to the President, and the President alone, there is no role for congressional investigation. See, e.g., Barenblatt. 360 U.S. at 111-112.

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Plaintiff repeatedly asserts that “the development of national energy policy is not a matter within the exclusive province of the executive branch.” Pl's. Reply 3. That is certainly true, and the Recommendations Clause presupposes that both Congress and the President play an important role in policy development. But surely “the development of national energy policy” by the Executive is a matter within the exclusive province of the Executive Branch. The founders made a conscious decision that political accountability would be served if the Executive could prepare and present legislation that Congress might or might not adopt. They rejected the suggestion that legislators have partial agency in the Executive's deliberations and proposals because vesting power in a plurality “tends to conceal faults, and destroy responsibility.” The Federalist No. 70 at 476 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). Such congressional meddling in the President's policy-development process would suggest precisely the kind of diffusion of authority that the Opinion Clause was intended to avoid. Id. at 477. [FN18] The constitutional design likewise gives Congress no need to intrude into executive deliberations under [FN19] the Opinion and Recommendations Clauses. Congress has a full and fair opportunity to review the results of the opinions offered to the President when he makes his formal recommendations to Congress. Moreover, [FN20] Congress can express its views that the President's process was infirm by rejecting his recommendations. FN18. Thus, plaintiff misconstrues the comment in The Federalist No. 74 that the Opinion Clause is a “mere redundancy.” Pl's. Reply 65-66. It was a “redundancy” precisely because it was so important to the concept of the unitary executive, which had already been discussed in The Federalist No. 70. See Akhil Reed Amar, Some Opinions on the Opinion Clause, 82 Va. L. Rev. 647, 663-664 (1996) (making this point about The Federalist Nos. 70 and 74). FN19. As with the Recommendations Clause, plaintiff attempts to argue that the President's Opinion Clause power is not exclusive. He says, “Congress has concurrent authority to request and review” opinions from executive-branch officials. Pl's. Reply 69. Of course, Congress's power to “request” opinions (subject to the normal accommodation process between the branches) is a far cry from the President's express constitutional power to “require” them. FN20. Senator Reid takes a slightly different tack, contending that the Opinion Clause does not allow the President to seek opinions from anyone but principal officers, or to seek unwritten opinions. Reid Amicus Br. 27. As Professor Amar has explained, both of those conclusions over-read the words of the Clause to the point of being inconsistent with it. See Amar, 82 Va. L. Rev. at 667, 670. Moreover, contrary to Senator Reid's insinuation, defendant has not suggested that every single piece of information that the Comptroller General seeks was itself an “Opinion in writing” required by the President. Instead, defendant argues that the NEPDG's policy-development activities were undertaken pursuant to that and other express constitutional functions of the Executive. Therefore, under Barenblatt, they lie beyond Congress's investigative authority. Plaintiff also argues that the President has no more exclusivity under the Recommendations and Opinion Clauses than he enjoys under the Take Care Clause. Pl's. Reply 67. Although the Take Care Clause is, of course, a very important power to the President, its unique nature makes it a unique subject of congressional concern. Unlike many of the other Article II powers (including those in the Recommendations and Opinion Clauses), Congress has significant authority to define the scope of the President's duties under the Take Care Clause. The Take Care Clause implicates the results of the legislative process § a process that necessarily presupposes pervasive congressional involvement. The Opinion and Recommendations Clauses stand at the opposite extreme, both structurally and procedurally. They allow the President to formulate a proposal that expresses his view of what the law should be, before the many voices in Congress help determine what the law is. Thus, contrary to plaintiff's

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assertion, there is nothing “odd” about concluding that “the President's recommendation power must be more jealously guarded than the President's take care power” (Pl's. Reply 68 n.39), because that recommendation [FN21] power is a distinct authority and is not subject to congressional definition. FN21. Moreover, plaintiff exaggerates the extent to which Congress can interfere with the deliberations that inform executive decisions to take care that the laws be faithfully executed. Whatever Congress's authority to inquire into the Executive's actions, it does not have any well-established authority to interfere with the deliberative process in which the prudence of those actions is debated. There can be no dispute that, under the aegis of the Recommendations and Opinion Clauses, only the President may control the development of his policy, regardless of what independent requirements Congress has attempted to impose on the Executive Branch. Allowing Congress to usurp the President's authority to develop his own policy and legislative proposals would constitute a much greater incursion on executive power than the limita[FN22] tion on the President's removal power sanctioned by Morrison v. Olson, 487 U.S. 654 (1988). Put simply, because Congress lacks the legislative powers to regulate the development of the President's policy and legislat[FN23] ive initiatives, plaintiff has no investigative powers over the development of those initiatives. FN22. Plaintiff makes the breathtaking, but undeveloped, assertion that Congress's spending powers give it complete control over “the President's development of [energy] policy, the NEPDG's activities, and surely their consultations with non-federal employees.” Pl's. Reply 65. That argument proves far too much. AAPS specifically noted that a “statute interfering with a President's ability to seek advice directly from private citizens *** raises Article II concerns.” 997 F.2d at 910. (The court did not note that potential right-of-petition concerns would also be raised if Congress could regulate presidential receipt of private persons' views.) Moreover, as applied to close presidential advisers (like those who composed the NEPDG), plaintiff's argument would permit Congress to eliminate executive privilege altogether. The privilege exists between the President and his close advisers, but, according to plaintiff, because those advisers are paid with federal funds, Congress may dictate the conditions on which their conversations with the President are confidential (or not). That conclusion is refuted by the law-review article plaintiff cites. See Jay S. Bybee, Advising the President, 104 Yale L.J. 51, 120 (1994) (“In a broad sense, everything the President does while in office may be said to be an exercise of the powers of his office, and thus nominally subject to Congress'[s] Necessary and Proper power. But that notion carried to its logical conclusion would have the President serving at congressional sufferance, a conclusion at odds with the idea of divided government.”); id. at 126 (“the President's ipse dixit should suffice to demonstrate the need for confidentiality [of an advisory committee's advice].”); see also Def's. Mem. 56-57 (describing constitutional limits on conditional spending). FN23. The one congressional investigative power not tethered to legislative powers - the power of the House of Representatives (not the Comptroller General) to investigate serious allegations of impeachable conduct in aid of its sole constitutional power to impeach - is not involved in this case in any way. 2. Even Under A Balancing Approach, The President's Information-Gathering And Confidentiality Interests Greatly Outweigh Any Purported Legislative Interest Plaintiff repeatedly - but incorrectly - asserts that a “balancing” test presents the proper approach to the constitutional issues in this case. Pl's. Reply 64, 68, 70. Even under such a test, however, it is clear that plaintiff's claims must fail. See Def's. Mem. 57-62.

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Plaintiff does not directly address the strength of the President's constitutional interests in formulating policy [FN24] proposals free from congressional interference, but they are evident from the D.C. Circuit's decision in AAPS. Just like AAPS. this case involves the deliberations of “a committee of [the President's] closest advisers” dedicated to developing the President's policy and legislative recommendations “on a domestic issue he considers of the utmost priority.” 997 F.2d at 909. The AAPS court explained that the President has a “strong” “confidentiality interest” in “each stage in the formulation of advice to him” by a group with such “operational proximity to the President.” Id. at 910 (emphasis omitted). FN24. Plaintiff addresses the President's confidentiality interests only in his procedural discussion of statutory certification and assertion of executive privilege, which is refuted above in Part IV.A. On the other side of the balance, even if there were some hypothetically legitimate congressional interest at stake, there is absolutely no need that justifies this suit. Congress can fully vindicate any concerns it may have about how the President's energy policies were formulated by refusing to act on his legislative recommendations and statutorily foreclosing his non-legislative proposals. Moreover, Congress's ability to take these actions gives it considerable practical leverage to obtain any information it wants. It does not need to have a congressional agent assert a sua sponte right to sue to get this information even when, as here, not a single committee has taken available actions to obtain the information. The Supreme Court in Reed held that a Senate resolution authorizing a committee to take all steps necessary to support its inquiry did not authorize a judicial action for documents. As here, Congress's other tools to obtain information render unnecessary a right to sue for the documents. Moreover, even if this Court were to give credence to the congressional interests plaintiff postulates, despite the lack of a collective congressional determination about them, Congress's need for the information plaintiff seeks is simply inadequate to outweigh the Executive's interests in formulating policy free from congressional interference. Neither plaintiff nor his amicus has identified any congressional interest even remotely sufficient to justify the serious intrusion into executive-branch processes he seeks. Plaintiff suggests only a few reasons why Congress has an interest in NEPDG documents. Pl's. Reply 69. He claims that Congress has a present interest in NEPDG documents because they would “satisfy Congress's need to understand how the NEPDG developed policy in order to evaluate whether the group achieved congressional objectives ***, and to gauge the necessity [FN25] for legislation related to energy or other policy developments in the future.” Id. at 73. (Senator Reid's [FN26] amicus brief fails to specify any congressional interest in, or need for, the information plaintiff seeks. ) Plaintiff's explanation is wholly inadequate as a counterbalance to the President's interest in preserving the confidentiality of the communications he and his advisers receive. At best, this argument is completely circular because it assumes the legitimacy of “congressional objectives” concerning the manner in which the President formulates his recommendations. Moreover, to the extent Congress's legitimate interest is in future energy legislation, it has ample alternative means better designed to formulate an alternative legislative record. Congress certainly does not have to understand the process by which the President developed his policy proposals in order to understand the policy proposals themselves. Congress has the NEPDG's report and the President's recommendations. The development process is irrelevant except as a means for members of Congress to discourage the adoption of presidential recommendations with which they disagree. FN25. Plaintiff makes no mention of his earlier claim (Pl's. S.J. Mem. 3, 27-28, 34 n.16) that Congress needs to know whether the NEPDG complied with FACA. FN26. In discussing the balancing test, Senator Reid describes only the Executive's interests. Reid

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Amicus Br. 34-37. Furthermore, in describing his own interests in this case, Senator Reid focuses merely on the substance of the NEPDG's policy proposals and on the budgetary impact they might have if implemented, id. at 3-5 - not on the NEPDG policy-development process in which plaintiff is interested. See Compl. Exh. I at 1, Exh. K at 1 (Comptroller General describing his interest in “the process by which the National Energy Policy was developed”). Plaintiff patterns his claimed legislative interests after a reference in Nixon II to “Congress'[s] need to understand” and “to gauge the necessity for remedial legislation.” Pl's. Reply 73-74. That quotation, however, has been wrenched out of context and does not support plaintiff's asserted legislative purposes. The Court in Nixon II did not approve any contemporaneous disclosures to Congress. In general, it addressed three forms of disclosure. The first was an immediate, but very limited, disclosure to allow presidential materials to be “screened and catalogued by professional archivists” or otherwise used by the Executive Branch. 433 U.S. at 450. The Court stressed that the presidential materials would remain “in full control” of the Executive Branch [FN27] and that they would not be made “available to the Congress.” Id. at 444 (internal quotation omitted). Second, the Court recognized that presidential materials could “be made available for use in judicial proceedings,” but only pursuant to “lawful process,” and still subject to case-by-case claims of privilege. Id. at 444, 451 n.13, Third, the Court addressed the “need to preserve the materials for legitimate historical and governmental purposes.” Id. at 452. It assumed that “public access” would “eventually” “be provided” to the materials (id. at 451 n.13), but that, even then, “the restriction on public access ultimately established by regulation” would “preserve executive confidentiality” (id. at 450). This prospect of “eventual disclosure” (ibid.) to the public was the only form of disclosure to which the Court thought Congress would be privy. Id. at 444. Thus, the only way in which the Court said the Act “may be thought to aid the legislative process and thus to be within the scope of Congress' broad investigative power” or to satisfy “Congress'[s] need to understand” (id. at 453) was in preserving the materials for access sometime in the future - after President Nixon's expectation of confidentiality had been “subject to [the] erosion over time [that occurs] after an administration leaves office” (id. at 451). FN27. See also 433 U.S. at 443-444 (“It is therefore highly relevant that the Act provides for custody of the materials in officials of the Executive Branch ***. For it is clearly less intrusive *** than to have Congress or some outside agency perform the screening function.”). In other words, Nixon II did not authorize any form of real-time disclosure to Congress, but only the preservation of materials for history's sake. Accordingly, Nixon II does not support plaintiff's claim that Congress needs NEPDG documents now, because disclosure to GAO is not necessary to ensure that NEPDG documents - like other presidential records from the Bush-Cheney Administration - will be preserved. C. A Legislative Agent Cannot Bring A Civil Enforcement Action Against The Executive Plaintiff's suit also flouts the Supreme Court's admonition that Congress's “power to investigate must not be confused with any of the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.” Quinn v. United States, 349 U.S. 155, 161 (1955). The power to file a lawsuit on behalf of the government to vindicate public interests is a quintessentially executive power, and therefore Congress cannot vest that power in its own agent, like plaintiff, without violating separation-of-powers principles. In response, plaintiff argues that Congress may “authorize a judicial enforcement action as a means of ‘enforcing process”’ in support of its “legislative power of inquiry.” Pl's. Reply 76, 77; see also Reid Amicus Br. 38-40. But that blurs the line between Congress's inherent contempt powers (which complement the traditional congression-

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al process of obtaining executive-branch documents that plaintiff seeks to circumvent here) and the dramatically different power to invoke judicial process. Yet, even assuming that plaintiff correctly analogizes this case to Congress's power to invoke judicial process for the enforcement of its subpoenas, this action would transgress two established lines by vesting discretion in a non-committee congressional agent to seek judicial enforcement against executive-branch officials. This Court should not countenance such an unprecedented legislative aggrandizement. Plaintiff's conflation of Congress's inherent powers and the power to seek judicial enforcement is most evident in his misreading of Reed. Plaintiff quotes Reed for the proposition that “[t]he Supreme Court indicated long ago that Congress could authorize a ‘committee or its members' to ‘invoke the [judicial] power’ in support of its power of inquiry.” Pl's. Reply 77 (bracketed addition in plaintiff's brief). In fact, Reed rejected the proposition that Congress's investigative powers necessarily include the ability to “invoke judicial power.” In Reed, the Court held that Senators seeking to secure evidence for their investigation of a senatorial election did not have the authority to sue, because that power was not included in the Senate's grant of authority to issue subpoenas and “do such other acts as may be necessary in the matter of [the] investigation.” 277 U.S. at 388. The Court explained that the Senate is “fully empowered, and may determine [matters related to the election of Senators] without the aid of the House of Representatives or the Executive or Judicial Department.” Ibid. (emphases added). Thus, it refused to read the Senate's grant of authority as going farther than “the established practice of the Senate to rely on its own powers.” Id. at 389. As the Court expressly noted: “Authority to exert the powers of the Senate to compel production of evidence differs widely from authority to invoke judicial power for that purpose.” Ibid. (emphasis added). Though unacknowledged by plaintiff, the Reed Court's distinction between Congress's inherent enforcement powers and the power to seek judicial enforcement is present in every one of the Supreme Court cases plaintiff cites in this context. Not one of those cases (see Pl's. Reply 76-77) provides an example of Congress or its agents seeking judicial enforcement; instead, they illustrate only two forms of enforcement power: (1) Congress's inherent power to have a contumacious witness arrested (by a congressional sergeant at arms), tried (before the bar of the House or Senate), and punished (by a term of imprisonment in the Capitol guard room or [FN28] the D.C. jail); and (2) the Executive Branch's power to prosecute the crime of congressional contempt. FN28. See Eastland v. United States Servicemen's Fund, 421 U.S. 491, 495-496 (1975) (no enforcement process because subpoena recipient filed pre-emptive action seeking injunctive and declaratory relief); McGrain v. Daugherty, 273 U.S. 135, 154 (1927) (habeas action brought against Senate's deputy sergeant at arms); Marshall v. Gordon, 243 U.S. 521 (1917) (habeas action brought against House sergeant at arms); In re Chapman, 166 U.S. 661, 664 (1897) (criminal contempt prosecution brought by district attorney, not any congressional agent); Anderson v. Dunn, 19 U.S. (6 Wheat.) 204 (1821) (false-imprisonment action brought against House sergeant at arms). In one contempt case, the Supreme Court noted that a claim of legislative privilege “deserves greater respect” from the courts in “a case in which the defendants are members of a legislature” than in a case “where an official acting on behalf of the legislature is sued or the legislature seeks the affirmative aid of the courts to assert a privilege.” Tenney v. Brandhove, 341 U.S. 367, 378 (1951). Plaintiff's case, which affirmatively seeks judicial aid and has been brought by an official acting on behalf of Congress rather than a member, combines both of the factors that warrant less respect. Even the discussion in Buckley v. Valeo (invoked at Pl's, Reply 76-77, 78 n.48, and quoted at Def's. Mem. 63) is

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completely consistent with the distinction between Congress's inherent enforcement powers and judicial enforcement. In Buckley, the Court recognized that Congress could delegate powers “of an investigative and informative nature” to the Federal Election Commission (whose members included congressional agents), but, in support of that proposition, it cited only cases involving Congress's inherent enforcement powers. 424 U.S. 1, 137-138 (1976) (citing McGrain, Kilbourn v. Thompson, 103 U.S. 168 (1880), and Eastland); see Kilbourn, 103 U.S. at 175-177 (arrest by House sergeant at arms); see note 28, supra (describing inherent-enforcement context of McGrain and Eastland). The Buckley Court then explained that a different result applies “when we go beyond this type of authority” (i.e., the investigative and informative authority to issue subpoenas and trigger the use of Congress's inherent enforcement powers). 424 U.S. at 138. It concluded that: “The [FEC's] enforcement power, exemplified by its discretionary power to seek judicial relief, is authority that cannot possibly be regarded as [FN29] merely in aid of the legislative function of Congress.” Ibid. (emphasis added). Thus, Buckley itself drew the line of constitutional permissibility between Congress's inherent enforcement powers and the invocation of judicial enforcement. FN29. The footnote plaintiff cites from the Attorney General's brief in Buckley (Pl's. Reply 79, 80) is no more supportive of his position. In a section of the brief arguing that the Court should not even address the constitutionality of the powers and duties of the FEC, the Attorney General noted in passing that “Congress has the right to enforce its own subpoenas.” Brief of the Attorney General as Appellee at 108 n.66, Buckley v. Valeo, No. 75-436 (filed Oct. 1975). Yet, that brief cited only cases involving prosecution by the Executive Branch. Compare ibid. (citing Watkins, Bryan, and Chapman), with Watkins v. United States, 354 U.S. 178,186 (1957) (case brought by U.S. Attorney after full House of Representatives approved contempt resolution); United States v. Bryan, 339 U.S. 323 (1950) (same); Chapman, 166 U.S. at 667 (prosecution by district attorney on referral by president of Senate). The other cases on which plaintiff relies (Pl's. Reply 77, 78) are inadequate to overcome those principles. The D.C. Circuit's decision in Senate Select Committee predated Buckley (and also arose in the context of casespecific authorizations by the Senate of subpoena power and by Congress of district court jurisdiction, see 498 F.2d at 727, both of which are absent here). The Supreme Court's decision in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787 (1987), relied on courts' own inherent contempt powers, and thus provides no authority for plaintiff's attempt to seek the aid of a separate branch of government. The non-controlling McDonnell Douglas decisions from other circuits are also unpersuasive. They misinterpreted Buckley by ignoring the distinction between Congress's inherent enforcement authority and the “discretionary power to seek judicial relief,” See United States v. McDonnell Douglas Corp., 751 F.2d 220, 225 (8th Cir. 1984) (“ McDonnell Douglas I ”) (relying on Eastland, McGrain, and Buckley to show that Congress has “some means of compulsion” to enforce its investigative powers); McDonnell Douglas Corp. v. United States, 754 F.2d 365, 368 (Fed. Cir. 1985) (“McDonnell Douglas II”) (relying on Watkins for the proposition that Congress's implied powers “include the power to investigate”). Moreover, both of the McDonnell Douglas cases are distinguishable because the Comptroller [FN30] General there had access under § 716(c)(1) pursuant to an “agreement.” FN30. See McDonnell Douglas I, 751 F.2d at 226 (“MDC specifically agreed to the inclusion of the access clause in its contract with the Air Force. MDC cannot now be heard to complain about the consequences of its agreement.”); McDonnell Douglas II, 754 F.2d at 368 (finding subpoena power based on “the access clause in the contract, agreed to by the parties”). Even if it were somehow appropriate to analogize plaintiff's assertion of judicial-enforcement power to Congress' s contempt or subpoena-enforcement powers, those analogs provide no precedent for the two further steps

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that would be necessary to legitimate plaintiff's action. Plaintiff cites no case in which a congressional agent sought judicial enforcement as an exercise of its own discretion without express approval from even a congressional committee, and none seeking judicial enforcement against the Executive Branch. In general, courts will not require disclosure of information sought by a legislative agent when there has not been at least committee or subcommittee approval. See Exxon Corp. v. FTC, 589 F.2d 582, 592-593 (D.C. Cir. 1978) (“The principle is important that disclosure of information can only be compelled by authority of Congress, its committees or subcommittees, not solely by individual members.”). Many congressional contempt prosecutions have foundered because they were based on the judgment of only a committee or subcommittee rather than a vote of the entire House or Senate. See, e.g., Watkins, 354 U.S. at 206 (“It is impossible in such a situation to ascertain whether any legislative purpose justifies the disclosures sought ***.”); AT&T I, 551 F.2d at 393 n.16 (the “resolution of the full House or Senate” “assures the witness some safeguard against aberrant subcommittee or committee demands”). Indeed, Congress's own practice recognizes the importance of authorization by a full house in the context of both contempt findings and subpoena enforcement. See, e.g., Exxon Corp., 589 F.2d at 593 (“Congress itself has manifested a concern to prevent the issuance of subpoenas by individual members as opposed to com[FN31] mittees, subcommittees or duly authorized committee chairmen ***.”). Because plaintiff has no such house or committee authorization here, the contempt and subpoena cases he cites cannot legitimate his action. [FN32] FN31. See also 4 Deschler's Precedents of the United States House of Representatives, H.R. Doc. No. 94-661, Ch. 15, § 22, at 188 (1977) (“When either the House or Senate receives a report of contumacious conduct from a committee, it routinely considers a resolution *** to certify the facts to the U.S. Attorney. By reviewing this resolution, the body checks the action of the committee.”); 2 U.S.C. § 288b(b) (allowing Senate Legal Counsel to bring a “civil action to enforce a subpena of the Senate or a committee or subcommittee of the Senate *** only when directed to do so by the adoption of a resolution by the Senate” (emphasis added)); Rules of the H. of Rep., 107th Cong., rule XI, cl. 2(m)(3)(C) (2001) (“Compliance with a subpoena issued by a committee or subcommittee *** may be enforced only as authorized or directed by the House.”). Plaintiff also adverts to the authority to seek judicial immunity (Pl's. Reply 78), but “the request for such an order” must be approved by the majority of a house or by two-thirds of a full committee (not subcommittee). See 18 U.S.C. § 6005(b)(1), (2). FN32. Moreover, in this context, the difference between the use of contempt power to enforce a particular subpoena for particular documents or testimony is quite different from the blanket authority to exercise prosecutorial discretion that plaintiff claims. The former is quite analogous to other legislative acts and includes the legislative safeguards of a majority vote. The latter is a classic example of the Executive's prosecutorial discretion without the unique safeguards of political accountability that limit the Executive. Finally, plaintiff claims that it “make[s] no difference” in terms of aggrandizing effect whether the Comptroller General files suit against “private parties or the executive.” Pl's. Reply 81. That claim is contrary to common sense and the case law. See Def's. Mem. 63-64. Although plaintiff does not recognize the difference, courts do, and there has never been a single case in which a court required the Executive to divulge information to Congress or its agents. Furthermore, even Congress has acknowledged the difference between enforcement actions against the Executive Branch and those against private parties. The Ethics in Government Act of 1978, on which plaintiff relies (Pl's. Reply 78), grants district-court jurisdiction over civil subpoena-enforcement actions brought

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by “the Senate or any authorized committee or subcommittee of the Senate,” but it specifically withholds jurisdiction over actions “to enforce *** any subpena or order issued to an officer or employee of the executive branch of the Federal Government acting within his or her official capacity.” 28 U.S.C. § 1365(a); see also S. Rep. No. 95-170, at 89 (1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4305 (“This bill *** does not provide any [FN33] authority for enforcement of subpenas against executive branch officials.”). FN33. The statute also eschews the 1928 Senate resolution plaintiff cites. Compare Pl's. Reply 78, with 28 U.S.C. § 1365(e). V. Weil-Established Principles Of Constitutional Avoidance Compel Rejection Of Plaintiff's Statutory Arguments The parties' competing interpretations of the statutory provisions underlying this litigation present the Court with a clear choice. It can adopt a construction of those statutory terms that is consistent with the natural and established meaning of those terms in other laws and consistent with the traditional established means of resolving inter-branch document disputes without resort to the courts. In so doing, the Court will avoid difficult and sensitive constitutional questions grounded in the separation of powers. In the alternative, the Court can adopt plaintiff's unprecedented reading of statutory language, empower a congressional agent with unprecedented powers, and force the statute onto treacherous constitutional shoals. The Supreme Court and the D.C. Circuit have made clear what course this Court should choose. Statutes - including information-disclosing statutes must be construed to avoid such constitutional confrontations. “[W]here an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg, & Constr, Trades Council, 485 U.S. 568, 575 (1988). The Court's hesitation to adopt a constitutionally troublesome reading of statutory text “is especially great where, as here, [the arguments] concern the relative powers of coordinate branches of government.” Public Citizen, 491 U.S. at 466; see also AAPS, 997 F.2d at 910-911. Plaintiff mistakenly insists that this Court has no choice but to enter the constitutional thicket. He argues first (Pl's. Reply 81) that the statute is not ambiguous. The Supreme Court and the D.C. Circuit have already recognized that terms like “agency” and “agency records” are not self-defining, at least with respect to statutes creating judicially-enforceable rights and their applicability to the President, Vice President, and close presidential advisers. See Franklin, 505 U.S. at 800-801; Meyer, 981 F.2d at 1291-1297; Armstrong v. Executive Office of the President, 90 F.3d at 556. The word “use” here is at least as “woolly” as FACA's reference to “utilize[]” that was construed in Public Citizen. 491 U.S. at 452. And equating the NEPDG's provision of advice to the President with the end results of an agency's execution of a statutory program is, to say the least, not the most natural usage of those terms. Plaintiff's assertion (Pl's. Reply 83) that Congress deliberately intended to “court[]” the “perils” of “dangerous constitutional thickets” is belied by the fact that Congress failed to enact the clear statutory language that would have forced the issue. Plaintiff's insistence that principles of constitutional avoidance do not apply to information-disclosure statutes because such statutes do not raise serious separation-of-powers problems is simply wrong, as a host of D.C. Circuit and Supreme Court cases reveal. See Part III.A.1, supra. For example, the D.C. Circuit applied avoidance principles in AAPS, even though the Task Force had already terminated its operations, because disclosure of documents was still at issue. 997 F.2d at 901 & n.l; see also Public Citizen, 491 U.S. at 450-451 (predicating appellants' Article III standing on the fact that they “might gain significant relief” from the application of the

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“public inspection” provisions of FACA). Plaintiff's last argument in support of constitutional confrontation, rather than avoidance, is that the President could previously have invoked certification and may still invoke executive privilege. Pl's. Reply 82. But, as already noted, the possibility that the President might have structured matters to avoid a lawsuit or could later invoke executive privilege did not preclude the Supreme Court in Public Citizen or the D.C. Circuit in AAPS from applying avoidance principles. See also Nader, 396 F. Supp. at 1234 & n.5 (invoking constitutional-avoidance canon, even though there was no claim of executive privilege). Plaintiff's construction of the statutory provisions to allow him to sue anyone up to and including the President to obtain materials on virtually any subject would raise a host of separation- of-powers problems. It would render the unelected Comptroller General one of the most powerful constitutional actors and forever tilt the balance of the separation of powers in Congress's favor. If plaintiff were correct that no other reading of the statutory provisions is fairly possible, then there would be little doubt that this Court must reject Congress's effort to aggrandize itself at the expense of the Executive (and all courts but the Supreme Court). However, the farmore-natural reading of those provisions - and the far-more-prudent judicial course - avoids those constitutional defects. CONCLUSION For the reasons set forth above and in defendant's opening memorandum, the Court should deny plaintiff's motion for summary judgment and grant defendant's motion to dismiss. Respectfully submitted, August 26, 2002 ROBERT D. McCALLUM, JR., Assistant Attorney General _, THODORE B. OLSON (DC Bar 367456), Solicitor General ROSCOE C. HOWARD, JR., United States Attorney PAUL D. CLEMENT (DC Bar 433215), Deputy Solicitor General SHANNEN W. COFFIN (DC Bar 449197), Deputy Assistant Attorney General DAVID B. SALMONS (DC Bar 476299), Assistant to the Solicitor General THOMAS MILLET (DC Bar 294405) Department of Justice, 10th & Penn. Ave., N.W., Washington, D.C. 20530-0001, Tel: (202) 514-3313, Fax: (202) 616-8202 Attorney, Civil Division Appendix not available END OF DOCUMENT

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Exhibit C

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Exhibit D

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Nancy Pelosi
@NancyPelosi
Democratic Leader, focused on strengthening America's middle class and creating jobs; mother, grandmother, dark chocolate connoisseur.

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#DOMA vote no surprise-Hoyer & I NO Boehner, Cantor, McCarthy YES. House to spend $ defending indefensible law.
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sajhand

425 days ago

What about the jobs the gop bitched about in the last congress?

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