Reactionaryactivism: conservatives and the Constitution. (special
prosecutor law struck down)
Swire, Peter; Lazarus, Simon
The New Republic
Feb 22,
1988
ON JANUARY 22, by a vote of 2-to-1, the federal Circuit Court in
Washington, D.C., ruled that the law authorizing 'independent couunsels'
(or special prosecutors) to deal with executive branch misbehavior is
unconstitutional. The law was challenged by lawyers for former Reagan
assistant attorney general theodore Olson, who is under investigation for
allegedly conspiring to misinform Congress. the position that special
prosecutors are unconstitutional is shared by the Reagan administration,
along with former officials currently under investigation, such as Michael
deaver and Oliver North.
The battle over special prosecutors, in fact, is part of an emerging
trend among right-wing legal strategists that makes a mockery of claims
that the right in general and the reagan administration in particualr
believe deeply in 'judicial restraint,' a chord oft-struck during the
Bork-Ginsburg-Kennedy confirmation proceedings. Increasingly, conservative
jurisprudence appears to be moving away from restraint and toward conjuring
constitutional law doctirnes that would authorize judges to overturn
federal and state regulatory and social welfare laws established by the
Progressive, the New Deal, and the Great Society.
In two particular areas, New Right academics, reagan administration
officials, and judges have begun to move the law in directios that seem
calculated to promote this goal of economic conservatism. First, they have
shown interest in constraining the power of legislatures, including
Congress, and establishing the dominance of the executive branch. second,
they have begun to argue that individual property rights should receive
greater constitutional protection.
D.C. Circuit Laurence Silberman's board-scale attack on the
independent counsel stature raises the first of these banners, executive
branch dominance. Essentially. Silberman holds that special prosecutors
violate the constitutional principle of ' separation of powers' on two
grounds: because a court, rather than the president, appoints the
independent counsel; and because the president can oly fire the counsel
'for cause'--such as serous wrongdoing.
Until january 22 these arguments had uniformly been rejected by the
federal courts, for reasons that any consistent devotee of judicial
restraint ought to find compelling. The Constitution itself says that while
certain principal officers can be appointed only by the president (with the
advice and consent of the Senate). 'The congrees may by law vest the
Appointment of such iferior Officers, as they think proper... in the Courts
of Law.' It has been established since the late 19th century that courts
are permitted under this provision to appoint officials who, like
independent cousels, are located outise the judicial branch, to perform
executive-type functions.
The first canon of construing any legal document--and a basic tenet
of 'strict constructionist' constitutional jurisprudence--is respect for
the 'plain meaning' of words. But Silberman had no trouble brushing the
principle aside: 'Althought we are certainly sympathize with the notion of
seeking the meaning of constitutional provisions first in textual language, we do not think this issue can possibly be resolved by invocation of the
plain meaning rule.'
Silberman is equally brisk with a second strict constructionist
icon--deference to the 'original intent' of the framers. During the late
18the century and for more than a century thereafter, federal prosecutions
were frequently handled by court-appointed private lawyers--similar to the
modern independent counsel concept--or by justices of the peace who were
otherwise membersof the judiciary. It seems unlikely that the framers
intended to forbid a practice that was widespread in their own time (a
favorite conservative debaters' point when the subject is, say, prayer in
school).
One conservative theme echoed in Silberman's opinion is that the
executive branch should enjoy an absolute monopoly over all activities that
can be classified as 'law enforcement.' The courts and, more especially,
Congress may not interfere with the Executive's discharge of that
function--however inadequate or even corrupt it may be in a given case. But
the whole point of the special prosecutor law--a law, like all laws, passed
by the democratically elected Congress and signed by the demoicratically
elected president--is that an administration cannot reasonably be expected
to investigate and prosecute itself, a point borne out by the historical
record, certainly including the record of the current regime at justice.
Silberman's reference to law enforcement as a 'core executive'
function has broader implications as well. It hints of a resurgence of
executive privilege as a judicially enforced barriers against meaningful
congressional oversight in other areas such as foreign affairs.
Conservatives made precisely such claims for absolute presidential foreign
policy power during last summer's debate over the Boland amendment, another
law democratically enacted and signed , which forbade aid to the Nicaraguan
contras.
Silbermans's second line of attack on the independent counsel law has
more far-reaching implications. This is his rejection of any limits on the
president's power to fire a prosecutor, once appointed. Silberman's
reasoning potentially could invalidate more than a dozen independent
regulatory agencies, including the Interstate Commerce Commission (which
has operated since 1887), the federal Communications Commission, the
securities and exchange Commission, and the Fedral reserve board. (Indeed,
Olson himself, the subject of the Silberman opinion, is involved as a
private attorney in a suit challenging the authority of the Federal trade
commission on precisely this ground.)
Until recently, the idea that the 'separation of powers' theory might
justify the Supreme Court in forcing so massive a transformation of
government was confined to academic scholars. but such ideas have been gaining legitimacy on the right. In a 1985 speech, Attorney General edwin
Meesed asserted: 'federal agencies performing executive functions are
themselves properly agents of the executive. They are not 'quasi' this or
'independent' that.... Power granted by Congress should be properly
understood as power granted to the Executive.' Justice Antonin Scalia wrote
two years ago, when he was still on the D.C. Circuit Court of Appeals: 'It
is not as obvious today as it seemed in the 1930s that there can be such
things as genuinely 'independent' regulatory agencies.'
AN EVEN MORE radical attack on liberal regulatory and social welfare
programs has been advanced by leading right-wing academics and appears to
have found champions in Scalia and Chief Justice William Rehnquist. This
ambitious agenda, involving the exhumation of long dead pre-New deal
constitutional theories, was displayed at an October 1987 Federalist
society conference at George Mason University entitled 'Constitutional
protections of Economic Activity: How They Promote Individual Freedom.' The
symposium was funded, perhaps ironically, by a grant from the National
Endowment for the Humanities. It featured a keynote address by University
of Chicago Professor Richard Epstein, a former colleague there of Scalia.
Epstein argued that social welfare programs, and taxes that pay for them,
'take' property from some citizens and give it to others without the
constitutionally mandated 'just compensation.' This position, as Epstein
cheerily acknowledges, 'invalidates much of the 20th-century legislation,'
including 'modern zoning, landmark preservation, and rent-control statues,
. . . collective bargaining, and minimum-wage laws.'
Two Supreme Court decisions during the last term seemed to be moving
the courts in Epsteinhs direction. An opinion by Rehnquist dealth with what
happens when a government regulation (such as zoning) reduces the value of
property so much that it becomes a 'taking,' and thus requires 'just
compensation' under the Constitution. The old rule had been that the
government was liable for compensation only prospectively. Thus it could
gracefully abandon the invalid regulation, but the public treasury would
suffer no loss. Rehnquist held that property owners could recover for past
harm from the regulation, thus creating an inherent and sometimes vast risk
of monetary liability any time the government attempts to regulate land
use.
In the second case, Scalia held that the state of California had to compensate beachfront property owners for requiring them to provide public
access to the beach as a condition of getting a building permit.
Previously, a regulation that impaired property values was not considered a
'taking' if it met the easy test of being 'rationally related' to any
plausible government interest or purpose. Scalia wrote that such a
regulation must 'substantially advance' the state purpose, and that the beach access rule did not. This ruling, obviously, is an invitation for
judges to involve themselves in minute details of government
policymaking--exactly the kind of 'activism' conservatives claim to
deplore.
Whatever the ultimate destination of this new Scalia-Rehnquist
property rights initiative, their decisions are plainly calculated to
invite challenge to as yet undefined classes of regulation and legislation.
As Justice John Paul Stevens observed in dissent, they are likely to spark
a 'litigation explosion' and impose 'an unprecedented chilling effect . . .
on public officials charged with the responsibility for drafting and
implementing regulations designed to protect the environment and the public
welfare.'
These Supreme Court decisions refining the law of 'taking,' or even
Supreme Court invalidation of the independent counsel statute, might not
lead the Court all the way down the road it seems to be started on. But
there are powerful political interests urging it forward. The Republicans
have controlled the presidency for 16 of the past 20 years, while
controlling the Senate for only six of those years and the House of
Representatives for none. This gives them a strong practical interest in
enhancing executive powr at the expense of the legislature. On a
theoretical plane, the legal right has long drawn sustenance from Nobel
economist James M. Buchanan's 'public choice' theory, which holds that
democratic legislatures chronically overspend and undermine
growth-maximizing profit incentives. In Richard Epsteinhs typically
quotable words, 'public choice' theory can be traced to the founding
Fathers: 'The greatest abuse known to the Framers was the ceaseless
imagination of legislative factions to devise new schmes for the costly and
unproductive transfer of wealth and power from one's opponents to one's
friends.'
THE CONSTITUTIONALITY of the independent counsel law may be the first
major issue that Anthony Kennedy faces on the Supreme Court. But in
considering other judicial nominees for the remainder of Reagan's term, and
beyond that if necessary, the Democratic Senate would do well to consider
not only the preservation of civil rights and civil liberties precedents,
but the potential for a new conservative activism.