Robert Novak’s column today has a rather remarkable account of the internal wranglings within the Bush administration regarding its position in the soon-to-be-argued D.C. handgun-ban case (D.C. v. Heller). He claims that the brief filed by the Justice Department did not reflect the position of the president of the United States. The DoJ brief vigorously advocates that the Second Amendment establishes an individual (not a collective, militia-related) right, but it comes up short of saying that the ban is unconstitutional, instead asking the Court to send the case back to the lower courts to permit it to apply a standard more flexible than the historical analog standard applied Judge Silberman in his impressive (and as far as I can tell correct) opinion. Notably, the DoJ brief states at several points that the ban “may well be” unconstitutional, but does not call directly for it to be tossed. Novak’s assertion that the brief aligns the administration “against the most popular tenet of social conservatism: gun rights” is a bit of an overstatement, given the individual-rights position advocated in the Department’s brief. It would have been more accurate to say that advocates of Second Amendment liberties think that the brief didn’t go far enough toward overturning the ban.
Novak claims that the president instead agrees with the position articulated in a separate brief filed on behalf of the vice president (in his capacity as president of the Senate) and a majority of the members of both houses of Congress (as a complete aside — if a majority of both houses of Congress, the body charged by the Constitution with exclusive lawmaking authority over the District of Columbia, thinks the ban is unconstitutional, why don’t they simply repeal it? Answer: that would require a political backbone). The separate legislative amicus brief also supports the individual-rights position, but goes the next step and says that the D.C. handgun ban cannot survive constitutional scrutiny.
Novak’s claim are remarkable and, quite frankly, difficult to believe. The solicitor general of the United States, who represents the executive branch before the Supreme Court, is said to have taken a position contrary to the position of the President, his boss and the head of that executive branch. How does such a thing happen? Novak asserts that: “The president and his senior staff were stunned to learn, on the day it was issued, that [solicitor general] Clement’s petition called on the high court to return the case to the appeals court.” But it would have been tantamount to legal malpractice for the solicitor general not to have shared a draft of the brief with counsel to the president far enough in advance to permit course corrections or even reversals. It is simply unimaginable that Paul Clement and his office did not loop in White House counsel well in advance of the filing. It is certainly standard practice to do so in cases of this magnitude — for instance, much has been written of coordination between the White House and the solicitor general on the Michigan race cases — and given the sensitivity of the issue, it would have been in the Department of Justice’s institutional, professional and political interests to make sure its position was calibrated to the Administration’s.
Does that mean that the president himself (and even his chief of staff and other senior staff) was fully apprised of the position to be asserted by the solicitor general in the Heller filing. Not necessarily. It is quite possible that the president was not fully aware of that position. I have no reason to know one way or the other whether what Novak claims is true (although I served as Vice President Cheney’s counsel for two years, I had left a month or two before this issue would have arrived on the White House’s doorstep). But the implication that the SG had gone all Jack Bauer on the president is simply inconceivable. If there is a failure here, it is a failure of the White House to calibrate the president’s legal thinking with the position taken by the SG in its brief, a function served by the president’s counsel. The SG very likely ran all the appropriate traps and got the appropriate clearances. Whether those clearances reflected the actual wishes of the president may be an open question. Novak suggests that “disorganization and weakness” may have contributed to the filing of a brief contrary to the president’s position, but that fault likely does not lie with Solicitor General Paul Clement.
At the end of the day, while the SG certainly controls the positions that the United States takes before the Supreme Court, he is subservient to the chief executive. In a case like this, issues of law and policy are closely intertwined. For instance, the Department of Justice frequently prosecutes criminals under the very statutes that are at issue in the Supreme Court litigation. That might explain why the SG was careful in not reaching a definitive position on the constitutionality of the handgun ban. It would indeed be awkward (and indeed, untenable before the Supreme Court) for the attorney general to regularly prosecute felonies under a statute that his solicitor general has argued is unconstitutional. While many obviously disagree with the prosecutions, a brief that went the next step and called for the ban to be overturned would require a call from on high — the sort of coordinated legal and policy decision that might require the input of the president. Without some direction that those prosecutions should be suspended, it would be difficult for the SG to stand before the Court and argue that the Justice Department was in the business of criminal enforcement of laws it believed to be unconstitutional.
It is hard to know exactly who planted a story like this. But it doesn’t make anyone look good.