公 法 评 论

et revelabitur quasi aqua iudicium et iustitia quasi torrens fortis


The New Republic, May 19, 1986 v194 p15(2)
Meese's power grab: the constitutional crisis no one noticed.

Murray Waas; Jeffrey Toobin.
COPYRIGHT 1986 The New Republic, Inc.


CONGRESS PASSES a bill. The president signs it into law. But his administration decides it doesn't entirely like the bill. So the attorney general--without even going to court--declares part of the bill unconstitutional, and orders federal agencies not to comply with it.

A federal district court rules that the bill is constitutional. The attorney general, hauled before the House Judiciary Committee, says that he's still going to forbid the government from obeying its own laws. "The district court does not have the ability to set a national precedent on the constitutionality of the law," the attorney general tells the startled representatives. A congressman asks, "What if an appellate court held the law constitutional?" The AG hedges: "I think we would have to review it."

The Judiciary Committee votes to withhold all appropriations from the attorney general's office--including money for salaries--until he agrees to enforce the law. Meanwhile, the federal district court orders the administration to stop flouting the law. Faced with the court order and the threat to his own paycheck, the attorney general backs down. The constitutional crisis is over.

This all happened last year--the final chapter was written just a few weeks ago--yet the episode went virtually ignored by the press. Since 1803, the year of the great case of Marybury v. Madison, it has been one of the uncontested maxims of American democracy that the judiciary--and the judiciary alone--has the power to declare statutes unconstitutional. Until, that is, the Constitution met Ed Meese.

The tale begins in July 1984, when President Reagan signed the Deficit Reduction Act into law. One obscure provision of the larger bill was called the Competition in Contracting Act (CICA), which was designed to save money by curbing the abuse of no-bid government contracts. Specifically, CICA strengthened the role of the comptroller general, the largely unknown figure who is currently embroiled in another constitutional contretemps--the dispute about Gramm-Rudman. One of the comptroller general's jobs has been to hear the complaints of would-be federal contractors who think that another company has gotten a sweetheart deal. This is not a trivial problem. Of the $168 billion in government contracts awarded in 1983, about two-thirds were single-source contracts with no competitive bids. Unfortunately, by the time the comptroller general could look into a suspicious contract, it was usually too late to stop it. CICA permits a potential competitor to challenge a deal by filing a protest with the comptroller general. The filing of a protest--and here is the key part--freezes the contract until either the comptroller general makes a decision on the protest or the head of the government agency involved certifies in writing that the contract can't wait because of "urgent or compelling circumstances which significantly affect the interests of the United States." In other words, a disappointed contractor can force the government to give him a fair hearing before the deal is already cooked against him. The comptroller general hs 90 days to settle the matter.

Defense contractors--and their chief patron in Washington, Caspar Weinberger--were livid when CICA was proposed, and lobbied hard against it. But CICA's congressional advocates--chiefly Democratic representative Jack Brooks of Texas and Republican senator William Cohen of Maine--got CICA attached to the Deficit Reduction Act, figuring that Reagan would not veto the whole bill because of one irritating provision. They were right; Reagan signed the bill on July 18, 1984.

But when he signed the bill, Reagan issued a statement saying he was approving CICA under protest and "instructing the Attorney General to inform all executive branch agencies as soon as possible with respect to how they may comply in a constitutional manner." Translated, that odd phrase meant that Reagan was telling Attorney General William French Smith to order federal agencies not to comply with the law. In mid-October the Justice Department released its internal finding that CICA was unconstitutional. Then on December 17 budget director David Stockman officially ordered all federal agencies to ignore the law. Coming with no fanfare in the week before Christmas and the month after the president had won a landslide victory, the order generated little notice or controversy. House Appropriations Committee hearings on the matter in March 1985 attracted little notice.

Also largely ignored was a March 1985 holding by federal district judge Harold A. Ackerman of Newark, New Jersey, that CICA was constitutional. (The plaintiff was a company called Ameron, which had lost a bid to clean and repair the sewers at West Point and went to court to force the comptroller general to investigate.) Three weeks later Meese was before the Judiciary Committee announcing not only that he thought Ackerman was wrong, but that in his opinion the judge did not have the authority to decide the constitutionality of the law! The New York Times didn't even run a story on Meese's testimony, possibly because it came the same day as President Reagan's visit to the Nazi cemetery at Bitburg.

In a May 20 ruling, Ackerman said Meese's position "flatly violates the express instruction of the Constitution that the President shall 'take care that the Laws be faithfully executed.'" Shortly thereafter, at the instigation of chairman Peter Rodino, the Judiciary Committee threatened to cut off Meese's funding. Meese, in turn, capitulated, and Stockman's order was rescinded. The law was once again the law. Ackerman's orders were affirmed in full by the Third Circuit Court of Appeals on March 27, 1986, in a frankly incredulous opinion by a conservative Nixon appointee, Leonard I. Garth.

BESIDES THE inconvenience it might cause to fat defense contractors, what exactly bothered the administration about this law? The Justice Department does not object to the automatic stay provisions of CICA--only to the fact that the comptroller general has the power to lift the stay. According to the administration, this is an executive function and the comptroller general is an officer of Congress; therefore, giving him this function violates the separation of powers. This is exactly the issue now in front of the Supreme Court in the Gramm-Rudman case. The scandal here, though, is not the administration's position on the executive-legislative separation of powers, but rather its trampling of the separation of powers between the executive and the judicial branches.

Presidents have disputed the constitutionality of laws many times. But until Ronald Reagan, no president has ever asserted the right to ignore a law he thinks is unconstitutional, let alone the right to defy a court ruling that a law is constitutional just because he happens to disagree. Until Ed Meese came along, the universal assumption was that you must obey the law until some court rules it unconstitutional--not that you can disregard a law even after a court has rules it unconstitutional, unless perhaps that court is the Supreme Court. (And Meese has never directly conceded that even the Supreme Court con overrule his opinion about a law's constitutionality.)

Testifying before a congressional panel, Deputy Attorney General D. Lowell Jensen attempted to justify the administration's order that agencies should ignore the CICA law by saying that it was designed to force a prompt court test of the law's constitutionality. But that is nonsense. The way to test a law is for one of the affected parties to challenge its enforcement, not to block its enforcement without a court challenge. The Justice Department wasn't choosing an unorthodox method of getting a court test. It was denying that it needed a court test. As Judge Ackerman put it in his opinion, "The action of the executive defendants in this case seems to be one designed to avoid a judicial resolution."

THERE IS A genuinely tough constitutional question here: Can the president ever refuse to enforce an enacted law because he believes that it's unconstitutional? What if Congress passed an appropriations bill that was necessary to keep the government functioning but also contained a provision banning all black people from the Capitol grounds? If a president signs the bill to keep the government running, what's he to do? Sanford Levinson, a law professor at the University of Texas, believes defiance might be appropriate if the statute would "significantly infringe individual liberties or some fundamental values." Others disagree, saying the better route is to arrange for the law to be violated immediately and allow a court--the designated branch of government for such decisions--to strike it down.

But certainly--certainly--CICA was not the place for the executive branch to make a stand. It is almost too fitting that this administration, so stingy in its view of the breadth of constitutional protections for minorities, the press, and criminal defendants, decided to force a constitutional confrontation on behalf of its favorite oppressed group: defense contractors.

But this episode may be less an attempt to rewrite the Constitution than an ordinary power play. The Reagan administration might like to have a constitutional line-item veto, but even Meese could not have seriously thought that his action was legal. Lowell Jensen, who defended this brazen assault on the Constitution, has been nominated for a federal judgeship. Senators might ask him about it during his upcoming confirmation hearings.

Mag.Coll.: 33J1338