Therefore, the court holds that the President's interest at these meetings outweighs the interest of Congress as expressed in FACA. The application of FACA to these meetings is unconstitutional as a violation of separation of powers principles.
Thus, the court holds that the imposition of FACA on the President's Task Force on National Health Care Reform impermissibly imposes upon the President's enumerated power, as set forth in Art. II, § 3, to recommend to Congress such measures as he deems necessary and expedient, but only as to those meetings of the Task Force at which the Task Force formulates its recommendations or presents these recommendations to the President. The court therefore declares that the following three sub-sections of § 10 of FACA are unconstitutional as applied to these meetings:
omicron Sections 10(a)(1) and 10(a)(3) directly affect the President's ability to perform his constitutional duty. Because they open the advice and recommendation sessions of the advisory committee to the public, they would affect the candor with which the committee's members deliberate their findings and proposals. This prevents the president from receiving the advice he needs to recommend legislation to the Congress.
omicron Similarly, § 10(c), by subjecting the advice and recommendation meetings to subsequent public scrutiny, would have the same effect on the candor of the advisors. These meetings, too, must be kept confidential.
However, the rest of FACA does not impose impermissibly upon the President's ability to perform his duties. Section 9(c), for instance, which requires that a charter be filed, will not affect the confidentiality of meetings. Section 10(a)(2)'s mandatory announcement of all meetings - including advice and recommendation meetings - also has no effect on the advisors' deliberations; that the public knows that the Task Force is meeting does not affect confidentiality within the meeting or impinge upon the President's power.
Section 10(b) is also constitutional since the deliberative process exemption of the Freedom of Information Act, 5 U.S.C. § 552, will allow the advisors the confidentiality they need to enable the President to perform his obligations. This section also addresses the product of the working group as all materials prepared for as well as by the Task Force shall be made available to the public. Thus, the public interest in ensuring that special interests do not overly affect Task Force or working group activities will be preserved.
Further, Section 10(d) is not implicated since §§ 10(a)(1) and 10(a)(3) may not to be applied to the Task Force when it meets in advice and recommendation meetings. All other provisions of FACA likewise are enforceable against all proceedings of the Task Force.
Since the application of FACA to all other operations of the Task Force does not violate the separation of powers principles, the court will enjoin all further meetings of the Task Force until such time as the Task Force is in full compliance with each of the requirements of FACA.
IV. THE REMAINING THREE PRELIMINARY INACTION CRITERIA.
A. Irreparable Injury.
Plaintiffs argue that the court should follow previous FACA decisions, particularly Public Citizen v. National Economic Comm'n, 703 F. Supp. 113 (D.D.C. 1989), and grant plaintiffs a preliminary injunction. Defendants, for their part, claim that plaintiffs will suffer no immediate irreparable injury for three reasons:
omicron since the Task Force is not subject to FACA, the plaintiffs have no rights under FACA;
omicron since the parties will have opportunities to address some of the Task Force's meetings as well as the opportunity to address Congress (once the Task Force reports to the President and he in turn proposes legislation based upon the Task Force's advice); and
omicron since no meetings of the Task Force have been scheduled.
None of defendants' contentions, however, distinguish this case from National Economic Comm'n.
First, the court's holding in Part III., above, is that some of the meetings of the Task Force are subject to FACA; thus, the first objection is not helpful to defendants. similarly unavailing is defendants' third argument as it is apparent that the Task Force will meet shortly.
As to the second argument, defendants address only one-half of the problem. While it may be true that plaintiffs will have other opportunities to affect the course of the legislation, FACA's purpose is also to open - contemporaneously - to the light of public scrutiny the workings of advisory committees subject to FACA. This goal cannot be met if the court does not enter a restraining order, as the National Economic Comm'n court observed:
The right to view the advisory committee's discussion of policy matters in public and the right to confront, through observation, the decision-making process as it occurs, will be obviated.
703 F. Supp. at 129.
The court therefore finds that plaintiffs have satisfied the irreparable injury standard.
B. No Injury to Other Parties and the Public Interest.
The third and fourth Holiday Tours criteria are taken together. Plaintiffs argue that the public interest, as set forth in FACA, will be undermined if the Task Force meets without first complying with FACA's strictures. Defendants' two arguments merely parallel their arguments on the merits of the issue: first, that the Task Force should not be subject to FACA; and second, that if the Task Force is subject to FACA, then FACA is unconstitutional. The court has already resolved these issues above and found that defendants' positions are unpersuasive (at least in part). In addition, the Task Force may comply with FACA's chartering requirements in quick fashion; this therefore serves more as an inconvenience than an injury. Finally, exposing the fact-gathering and fact-reporting meetings to public scrutiny similarly will not cause any significant injury to the Task Force (which, after all, had planned on opening some of its meetings to the public anyway). Balanced against these minor inconveniences is the great benefit to the public of opening the Task Force's meetings to the public.
Therefore, the court finds that the public interest will be served if the court grants plaintiffs' motion in part. Again, the National Economic Comm'n court is persuasive:
Rather than harm, [applying FACA] will highlight vividly the essence of our democratic society, providing the public its right to know how its government is conducting the public's business.
Ibid. Plaintiffs have therefore met all the criteria for a preliminary injunction.
The court today is faced with two difficult tasks: declaring an act of Congress unconstitutional; and declaring that the actions of a new President violate the law. Nonetheless, the Constitution demands that all "judicial Officers . . . shall be bound by Oath or Affirmation to support this Constitution," U.S. Const. Art. VI, and this responsibility includes ensuring that no branch of government appropriates the responsibilities of another branch. It is not a power to be taken lightly, but it is a power that must be taken.
For the reasons stated above, plaintiffs' motion for a temporary restraining order and a preliminary injunction is granted in part; defendants' motion to dismiss or, in the alternative, for summary judgment is also granted in part. An appropriate order accompanies this memorandum opinion.
Royce C. Lamberth,
United States District Judge
DATE: MAR 10 1993
ORDER - March 10, 1993, Filed
The case comes before the court on plaintiffs' motion for a temporary restraining order and a preliminary injunction; defendants' motion to dismiss or, in the alternative, for summary judgment; and plaintiffs' memorandum in opposition to defendants' motion and in support of plaintiffs' motion. Also before the court is plaintiffs' motion for expedited discovery.
For the reasons stated in the accompanying memorandum opinion, and having held that the application of certain sections of FACA to certain meetings of the President's Task Force on National Health Care Reform is unconstitutional as a violation of separation of powers principles, it is hereby ORDERED that:
1. Plaintiffs' motion for a preliminary injunction is GRANTED in part. Defendants are hereby PRELIMINARILY ENJOINED from holding or conducting any meetings of the President's Task Force on National Health Care Reform and any subgroups or subcommittees thereof until such time as the Task Force is in full compliance with the requirements of FACA (except as provided in P 2 of this order). In addition, all fact-finding and fact-reporting meetings of the Task Force must comply fully with the requirements of FACA.
2. Defendants' motion to dismiss or, in the alternative, for summary judgment is GRANTED in part. All claims based on the interdepartmental working group are DISMISSED, pursuant to Fed. R. Civ. P. 12(b)(6), for failing to state a claim upon which relief may be granted. In addition, plaintiffs' claims based on meetings of the Task Force which are held for the purpose of formulating advice and recommendations for the president are also DISMISSED under Rule 12(b)(6). Sections §§ 10(a)(1), 10(a)(3), and 10(c) of FACA are not applicable to these meetings since their application to these meetings is unconstitutional as a violation of separation of powers principles.
3. Plaintiffs' motion for expedited discovery is DENIED.
4. Plaintiffs shall post with the clerk of the court a bond totalling $ 100.00 in cash or surety.
Royce C. Lamberth,
United States District Judge
DATE: MAR 10 1993