The growing number of court cases challenging the legal authority of a series of Obama-administration actions brings to mind my experience as general counsel of the Reagan administration’s Office of Management and Budget.
In the Reagan White House, senior lawyers operated and lived under an aggressive system for monitoring adherence to the rule of law. The contrast could hardly be greater between the conduct we authorized and what the Obama administration is now doing in areas ranging from taxes to law enforcement, from health care to labor relations, from employment discrimination to environmental policy to recess appointment powers.
For starters, Reagan-administration lawyers needed to deal with our avenging monitor Ted Olson, who, as head of the Justice Department’s Office of Legal Counsel, exercised a roving commission to ensure compliance with statutes and court decisions on a political-consequences-be-damned basis. Few agency general counsels, myself included, escaped an Olson charge that we had engaged in “expedient” lawyering, and none would have dreamed of defending a warped reading of the law on the ground that it facilitated administration policies.
We were also monitored by a very small group of then-young White House attorneys that included two later-appointed Federal Circuit judges, a cadre of current Washington super-lawyers, the CEO of a Fortune 25 company, and — just to keep us on our toes — the current chief justice. No failure to comply with clear statutory language and no claim of enforcement discretion as an excuse for the wholesale repeal of statutorily regulated systems would have been possible, or even tried, under their watch.
The lawyers who served Ronald Reagan were good and, as I hope to show in this essay, often exceptional, and we served him effectively and well. But the Reagan White House culture meant that at times we were obliged to stand in the way of actions and policies thought to be of great value to the administration.
There was Treasury general counsel and later White House counsel Peter Wallison who, in one of many actions, closed down a federally created bank for want of statutory authority. Boyden Gray, counsel to then-vice-president Bush, sought to undo federal regulations but enforced compliance with them when the regulations remained in force. Richard Willard, head of the Justice Department’s Civil Division, routinely refused to sign off on case settlements mandating the funding of agency-favored activities for which Congress had failed to appropriate monies. White House Counsel Fred Fielding made short and savage work of efforts to base federal-grant decisions on the “defund the Left” principles demanded by many administration supporters.
As OMB general counsel, I had significant responsibility for clearing executive orders, and I blocked a number of them for want of legal authority — doing so despite cries of pain from colleagues on the policy and political sides. Of special note, I recall the time when the Iran-Contra independent counsel thanked me for “defeating Ollie’s Army” — a bittersweet moment based on my finding that an appropriations-act provision barred White House officials, including Oliver North, from exercising control over the military component of the president’s initiative against the Sandinista junta. Even though my reading of the law turned over effective control of U.S.-Nicaragua policy to State Department officials who were openly hostile to the president’s policies, my position was respected and sustained once I made the case that only legal sophistry could undermine the terms of the applicable statute.
In special ways, my colleagues and I were committed to implementing at least four additional, major principles.
First, we engaged in heightened scrutiny of proposed actions when, as in the Sandinista case, judicial review was unlikely. Rather than feeling freer to act on extra-legal grounds when courts would not be looking over our shoulders, we took special care to examine the legality of proposals when ours was likely to be the last word.
Second, we made as certain as we could — often personally — to sternly treat any effort to link past or promised financial or political support to the president or the Republican party with favorable treatment of policy proposals. To the surprise of lobbyists, we ended discussion of such proposals as soon as they put the links on the table. On at least two occasions, I made clear that word of further efforts to convert campaign contributions into policy support would result in FBI referrals.
Third, we worked especially hard to ensure the consistent application of constitutional principles. In a particular case — the president’s commitment to restore a robust federalism and ensure that states were not treated as middle managers of D.C.–based policies — what we did often hit hard at the president’s supporters. Many grassroots conservatives praised our federalism initiative in the abstract but were stunned when, to cite one example, we opposed using the Department of Education to regulate textbooks whose leftward bias was palpable. In another instance, I had worked hard to gain support for a tort-reform initiative that I believed consistent with federalism principles, but lost the battle to colleagues who argued that states should decide the matter. We all agreed that tort law had become economically and socially destructive, and we knew that the tort bar had become a prime financial supporter of the Democratic party, but my colleagues won the argument, even though they also conceded that prospects for state-based reforms were remote.
Finally, we did whatever we had to do to ensure that the president’s Article II, Section 3 obligation to “take care that the laws shall be faithfully executed” was taken seriously — even to the point of enforcing it directly against President Reagan, at great cost to his public standing.
There was the notable time when Counsellor to the Attorney General Brad Reynolds and Olson’s successor Chuck Cooper were assigned to examine voluminous files to ensure the accuracy of testimony that the administration would shortly be required to offer regarding its relations with the Iranian regime. While doing so, Reynolds found a document that not only demonstrated that arms had been provided to the regime but also revealed that monies from the effort had unlawfully funded anti-Sandinista activities. Rather than return the document to the mountain of papers before him, which he easily could have done with no one the wiser, Reynolds immediately brought it to Cooper’s attention, and the two then immediately brought it to Attorney General Meese. After conducting an intensive one-day follow-up investigation that confirmed the document’s accuracy, Meese went directly to the president and told him what had been found. The next day, at a press conference with the president that Meese largely conducted, the politically damaging arms shipments to Iran and its Contra connection were publicly disclosed. Thus began the Iran-Contra investigation — triggered by three of the highest-ranking White House lawyers who felt obliged to comply with the law’s mandate to seek and preserve incriminating documents and to scrupulously enforce the law. And that is how Meese, Reynolds, and Cooper served a president they loved, although they would have given almost everything not to have done what they felt obligated to do.
At the time, it troubled Ronald Reagan’s lawyers that we frequently caused political problems for his administration and often denied it the ability to trump Congress, the courts, and (in the eyes of the president and all of us) counterproductive laws. Yet the immediate difficulties we caused now seem blips of the past, while the manner in which we were empowered to operate seems increasingly connected to the historic achievements of the Reagan presidency. Success of the sort that President Reagan achieved always involves the periodic sacrifice of short-term advantages; it requires a readiness to make principled conduct more important than immediate gain.
How different this is from the “I’ve got my pen” ease with which the Obama administration now ignores statutes it dislikes and promulgates laws that Congress declines to pass. The actions of the Obama White House are in such contrast to my experience that I feel more incredulous than angry when looking at the long list of abuses: ignored statutory deadlines, deliberately uncollected taxes, unauthorized distributions of federal subsidies, appointments made without Senate confirmation, open refusals to enforce criminal and other statutes, and the blithe conversion of standard enforcement-discretion authority into an assumed right to repeal statutes.
My incredulity extends to the Obamacare case now before the Supreme Court, King v. Burwell. Whatever the political or policy consequences would have been, there is no way that the Reagan administration’s senior lawyers would have allowed billions of dollars to go to two classes of beneficiaries under a statute that expressly restricted the subsidies to only one of the classes. (This view is made all the more certain by the fact that earlier drafts of Obamacare had authorized both classes to receive the subsidies, while — in what we can clearly read as a legislatively bargained deference to state decision-making — the final draft expressly restricted the subsidies to state-endorsed beneficiaries.)
Anger, however, is the only proper reaction to one particular aspect of the president’s “we’ve expanded my authorities” claim. Now that Obamacare has made many Americans dependent on multibillion-dollar payments whose legality the Supreme Court has yet to determine, and now that the administration has raised the hopes of millions of illegal aliens that their status has been effectively legalized, the administration is pressuring the courts to rule in its favor by arguing it would be too disruptive to do otherwise. In addition, the administration is threatening to make political scapegoats of the Supreme Court for the dislocation that an adverse ruling would cause
Having already used a State of the Union address to condemn a captive Supreme Court sitting before him for a campaign-finance ruling it had made, the president continues to treat the courts as he would political adversaries. The political threats the president is now making are especially egregious because they are taking place before the courts have decided the lawsuits that challenge his conduct. Such conduct crosses the line from “I hope the courts rule in our favor” to “the courts better rule in our favor.” This conduct, if engaged in by private litigants, would raise serious contempt-of-court issues. What’s even worse is that the threats to the courts come from the president himself, the very man who is sworn to protect the constitutional balance of power.
By one reckoning, however, it is hard to blame the president for his behavior. He is a lawyer and was a law professor, but as president he is a client entitled to do what his lawyers fail to restrain or deem unlawful. On the other hand, the president is responsible for the lackluster and compliant corps of lawyers who have turned a blind eye to conduct that few serious attorneys would have allowed. He is responsible as well for creating a White House Counsel’s office that has been little more than a political unit.
Most of all, the president is responsible for his choice of Eric Holder — the most lawless attorney general since John Mitchell.
I taught the University of Mississippi Law School’s first racially integrated classes more than 40 years ago and lived in a world where law was often subordinated to cause. That effort rightly failed, as will the Obama administration’s comparable attempt. But just as the South’s resistance to racial justice led to permanent limitations on all forms of state action, so will the administration’s conduct be likely to limit presidential authority — often in ways that will disserve the public interest on a long-term basis. New constitutional limits on executive-branch action may be put in place, of which the Supreme Court’s 9–0 invalidation of the administration’s effort to make at-will recess appointments may be the first. Before the dust settles, “standing” doctrines that limit judicial challenges to executive-branch action may also be eroded, as perhaps will the presumption of legality that now attaches to agency constructions of statutes. Congress may refuse to authorize statutory waivers and could draft laws with language that explicitly precludes administrative flexibility. While these steps could transfer excessive decision-making power to the courts, and could rigidify and bureaucratize government decision-making, they would also ensure against the greater evil of executive-branch indifference to the rule of law.
One can hope that only limited means of negating the Obama administration’s conduct will be applied. But however achieved, overturning the administration’s practice of reading statutes in whatever manner serves its policy preferences, and ensuring that future administrations will not do the same, has become an urgent priority for Congress and the courts.
— Michael Horowitz is CEO of the human-rights think tank Twenty-First Century Initiatives.