On February 22, 2002 the General Accounting Office (“GAO”) filed an unprecedented lawsuit against Vice President Richard Cheney, seeking an injunction requiring him to produce certain records relating to the National Energy Policy Development Group (“NEPDG”), which he chaired at the behest of President George W. Bush. For the first time in its eighty-one year history, the GAO has filed suit against a federal official in relation to records access.
The suit is the result of a GAO inquiry begun at the request of Representatives Henry Waxman and John Dingell, who were concerned about the potential influence Enron and other special interest groups had over the NEPDG’s activities. The Vice President has so far refused to meaningfully acquiesce to any of the GAO’s information requests or attempts at accommodation, and has argued that the GAO does not have the statutory authority to obtain the records requested. More significantly, he has hinted at—though not formally asserted—executive privilege, setting the stage for a legal showdown that could make its way to the Supreme Court.
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause?
The U.S. Constitution is unique even among democratic nations for the guarantees it grants to U.S. citizens. The interpretation of the Constitution further distinguishes American notions of freedom and liberty from every other country in the world. The Internet Age, however, has ushered in a period where national boundaries and guarantees are blurred among the many intersections of the World Wide Web. This uncertainty has raised serious questions relating to the fundamental rights and liberties established by our forefathers: Can the United States maintain its guarantee of freedom of speech for the Internet? Who profits from such a guarantee? What are the implications for other nations if the United States ignores their pleas to rein in such guarantees?