The Reagan administration has been racing around the legal front of late with great energy and accompanying loud pronouncements: going before judges, citing statutes, getting arrest warrants, dispatching FBI agents to the scene of the crime (the "shipjacking"), criticizing our allies for failing to observe international law and for violating the spirit, if not the letter, of extradition treaties. All this activity comes in the name of justice and in the interests of the rule of law.
Which is, of course, fine and proper and even welcome, but there's a problem here. This administration does not practice what it preaches, and at no point has that been more apparent than in recent days.
This is, after all, the administration that withdrew from the compulsory jurisdiction of the World Court after Nicaragua accused the United States, accurately, of illegally mining its harbors and took its case before that international tribunal. It is also the administration that, when it suits its purposes, violates air space of a sovereign state and ally, Italy.
It is the administration that has been seeking, aggressively, to impose its will and its ideological interpretation of the law upon the judiciary by attacking Supreme Court decisions, politicizing the appointment of judges to the federal bench and seeking to reverse the historical doctrine of judicial review. It is also the administration whose actions have sparked an extraordinary public statement from a justice of the highest court, William J. Brennan Jr., who delivered a thinly veiled rebuke to the Justice Department by characterizing its constitutional views as "little more than arrogance cloaked as humility."
It is also the administration that, in a number of areas, again emanating from the Justice Department, has been seeking to assume to itself the old discredited notion of executive supremacy in our governmental system. It is also the administration that on occasion has instructed federal agencies to ignore the law.
On that point, a recent speech on the Senate floor deserves wider attention and more careful thought than it has received.
Sen. William S. Cohen, the Republican moderate from Maine, was commenting on the nomination of James C. Miller III to succeed David A. Stockman as director of the Office of Management and Budget. Cohen thought Miller an excellent choice and supported his nomination. But, as he told his Senate colleagues, he was "deeply troubled" by a response Miller gave to a question asked at his nomination hearing, one that Cohen believed "goes right to the heart of our constitutional system of government."
As the senator put it:
"I asked Mr. Miller whether or not he believes that the executive branch has an obligation to follow a law that is duly enacted by Congress and signed by the president, provided that no court has ruled it unconstitutional.
"This was not a hypothetical question. Last year, Mr. Miller's predecessor at OMB, acting at the behest of the attorney general, issued a directive ordering federal agencies to ignore certain provisions of the Competition in Contracting Act that the Justice Department believes to be unconstitutional.
"Mr. Miller's response, in essence, was that he would defer to the Department of Justice should such an issue arise. Since it was the Department of Justice which ordered his predecessor to direct all agencies to ignore the law, his response greatly concerns me."
Cohen also commented: "I regret to say that the administration's disregard for the rule of law is not limited to the Competition in Contracting Act. The executive's action in that case is not unique; it is not an isolated example. Rather, the administration in other areas has tried to place itself above the judiciary in interpreting the law . . . . The reason I take the floor is to forewarn my colleagues that we are ignoring a silent, but steady drift toward a dangerous imbalance of power under the Constitution."
These remarks came just before the latest international hostage episode again highlighted the lawless acts of terrorists and before Justice Brennan's widely publicized remarks at Georgetown University a few days later. But they all take place in a context of gathering bipartisan concern about the legal views of this administration. Brennan's speech, an eloquent and ringing declaration, offered a memorably differing interpretation of the Constitution from that espoused by Attorney General Edwin Meese III.
Meese, among other statements that have generated discussion and debate, has argued publicly that the proper function of the Supreme Court is "to resurrect the original meaning of constitutional provisions and statutes as the only reliable guide to judgment."
It was that sort of reasoning, a "strict construction" of the Constitution and an implicit rejection of the concept of judicial review and judicial activism, that appears to have prompted Brennan's strong response.
"Judges cannot avoid a definitive interpretation because they feel unable to, or would prefer not to, penetrate to the full meaning of the Constitution's provisions," he said. "Unlike literary critics, judges cannot merely savor the tensions or revel in the ambiguities inhering in the text -- judges must resolve them.
"Second, consequences flow from a justice's interpretation in a direct and immediate way. A judicial decision respecting the incompatibility of Jim Crow with a constitutional guarantee of equality is not simply a contemplative exercise in defining the shape of a just society. It is an order -- supported by the full coercive power of the state -- that the present society change in a fundamental aspect."
As Brennan said: "There are those who find legitimacy in fidelity to what they call the 'intentions of the Framers.' In its most doctrinaire incarnation, this view demands that justices discern exactly what the Framers thought about the question under consideration and simply follow that intention in resolving the case before them. It is a view that feigns self-effacing deference to the specific judgments of those who forged our original social compact. But in truth it is little more than arrogance cloaked as humility. It is arrogant to pretend that from our vantage point we can gauge accurately the intent of the Framers on application of principle to specific, contemporary questions."
He adds, bitingly: "One cannot help but speculate that the chorus of lamentations calling for interpretation faithful to 'original intention' -- and proposing nullification of interpretations that fail this quick litmus test -- must inevitably come from persons who have no familiarity with the historical record."
Meese, at a subsequent news conference, said he welcomed the Brennan speech as a way to widen the debate over how to intepret and enforce the Constitution. Let us hope it does just that -- and hope, too, that all these recent related developments touching on our concepts of law and justice spur further public examination of the legal attitudes and practices of this administration. It had better, for among the many great issues confronting the nation, this is one of the most significant.