Wanted: Energy in the Executive

...The problem was, to use Alexander Hamilton's phrase, a lack of "energy in the executive...

...That it took until 1986 beforethe President made his most persuasive case in behalf of the contras suggests a problem of judgment, of knowing when best to use the Oval Office...

...As for the failure to oppose the Boland Amendments, that seemed a problem of will...

...This is what it meant to go to Washington, even, alas, to govern...

...But civil rights is too important to be left to lawyers...

...there were no ambiguities...

...On contra aid, the Bork nomination, and the independent counsel law, the lack of energy can't be traced to intellectual failure...

...In 1978 Congress passed the Ethics in Government Act, which enables the appointment of independent counsels to investigate allegations of wrongdoing against certain high-ranking executive-branch officials...

...One, contra aid, concerned the fate of democracy abroad...

...O ne account of the Republican Convention said that conservatives in New Orleans craved another Reagan, that his second coming is what they ardently desire in a future President...

...Outside the Justice Department, the editorial pages of the Wall Street Journal, and the pages of this magazine, the law met little opposition (except, of course, from those being investigated...

...I'm talking about those who put on their Adam Smith ties but who had not read the first page of Wealth of Nations or any other Smith work...

...All of which was fine, but 14 THE AMERICAN SPECTATOR NOVEMBER 1988 far from enough...

...it had been advised by Deputy Attorney General Arnold Burns, who had made the decision to file a brief in the court of appeals opposing the law on constitutional grounds...

...For more than a year now conservatives—including a number of former administration officials—have offered various explanations as to why Reagan didn't achieve more...

...These counsels are appointed not by the President or his agents but by a federal court, and they can be removed only for incapacity or misconduct...

...Contra aid was part of a larger administration effort to encourage democratic freedom-fighters abroad—the Reagan Doctrine...

...At the least he should have vetoed the law when Congress reauthorized it in late 1987...

...It is "essential," he said, to "protection of the community against foreign attacks," "to the steady administration of the laws," "to the protection of property," and "to the security of liberty against the enterTerry Eastland was director of public affairs at the Department of Justice from April 1985 to May 1988...

...Judicial activism has been exposed, and the federal courts aren't as receptive as they used to be to the legal arguments of political liberalism...

...These programs not only violate color-blindness but invite corruption...

...A s the Reagan presidency winds down, few conservatives disagree about its most important achievements...

...The Justice Department opposed quotas, goals, and other devices that prefer individuals for jobs on the basis of race...

...that is, they will know that duration of office is short (four years, never more than eight) and that every bit of it must be used purposefully and effectively...

...Granted, some socializing is necessary...

...But on too many issues lying at the very heart of this presidency, the executive wasn't sufficiently energetic...

...Commendably, some conservatives worked hard to oppose non-conservatives for high positions...

...The independent counsel law is unconstitutional...

...But in one specific, important way Reagan is not the right model...

...While in the administration, I saw too little of that kind of seriousness...

...Obviously, far more was promised than delivered, and most of Reagan's accomplishments can be undone...

...Thanks to Ronald Reagan, the political atmosphere today is markedly different: "liberalism" is out...

...A truly energetic campaign—one based on ideas—would have yielded fewer states...

...They will seek to acquire and instill in others the habits needed for effective governing...

...Neither the President nor the senior White House staff ever took control of the policy...

...The left understood this and began an assault on the day Bork was nominated...

...And above all they will understand the meaning of presidential time...

...Even liberals oppose them...

...To be energetic it is necessary, first of all, to be clear about the policies in question—an intellectual matter...

...A great opportunity, down the drain...

...This fellow was obviously facing a busy evening, but it wasn't what Hamilton had in mind when he talked about energy in the executive...

...Courage also might have been lacking on civil rights...

...I remember once seeing a daily schedule passed around a government office by its nominal leader...

...On the fourth, the independent counsel law, energy in the executive at least could have clarified the issue, exposing the law for what it is—another congressional invasion of presidential power...

...More energy, more sustained energy and energy directed at the right ends, is what's needed in the next conservative administration...

...But the Labor Department continued to impose racially discriminatory goals on federal contractors—a policy begun during the Nixon years...

...We know when it's best to use the President," I was told...

...Clearly, energy meant pretty much then what it does today: "the capacity of acting or being active...

...And the eventual vote was overwhelming: 58 to 42...

...At stake in the Bork nomination was nothing less than the fifth vote in the Supreme Court on some key issues...

...But the Reagan cabinet never seemed to understand what makes a quota wrong is also what makes a goal, target, or set-aside wrong: the fact that each of these devices counts and rewards by race...

...Those who do will be people serious about government...

...Ties to the conservative movement could be decisive: it greatly mattered to some of these folks which conservative family tree you were on...

...11 / NOVEMBER 1988 Terry Eastland WANTED: ENERGY IN THE EXECUTIVE Was Ronald Reagan lazy, or should blame for the failed Reagan Revolution be shared by Washington conservatives...

...As Central America scholar Mark Falcoff put it to me, "Only the President cared about it...

...Perhaps also one of courage: White House advisers might have been intimidated by the various lobbies vigorously opposing Bork...

...It is also necessary to know when to advance those policies—a matter of judgment...

...And various agencies expanded previously existing minority set-aside programs or else created new ones...

...Another, civil rights, concerned the fate of a moral principle as old as the Declaration of Independence, what Lincolncalled the "sheet anchor of republican government...

...Reagan translated his personal popularity into a stunning 49-state victory in 1984...

...Reagan should have resisted using it...

...my own files bulged with speeches written for the President but never given...

...It seems clear that Reagan thought more of his personal fate than that of his political movement and the kind of lasting impression it might leave on the nation...

...The repair of our defenses has begun...

...It's easy to be against "quotas...

...The lack of energy in the executive on civil rights meant that civil rights issues were argued in the same termsthey had been for a decade—those of statutory and case law...

...In any event, the most important consequence of the continued existence of the independent counsel law will be a weakened presidency, a fact candidates Bush and Dukakis should note...

...But strangely, and for no good reason, conservatives sometimes opposed fellow conservatives for key jobs...

...Another, the Bork nomination, concerned the fate of Supreme Court jurisprudence and the shape of justice for years to come...

...Energy in the executive, Hamilton said, would be manifested in "decision," "activity," "vigor," "expedition," "firmness...

...And until 1986 the President failed to make the case for contra aid in a way calculated to secure public support...

...Congress funded the contras in1986 but voted earlier this year to suspend aid...

...Inflation is down, and marginal tax rates have been cut...

...I suspect that a graph of the executive branch over the past eight years would show an overall decline in energy, the highest points coming in the first term, the very highest probably in 1981, year of the tax cuts...

...Matters of principle must be stated plainly and repeatedly by the chief executive...

...And issues affecting minorities only start with civil rights: there is a need for a larger, imaginative treatment, one focusing on the importance of education and other non-racial factors critical to the economic advancement of racial and ethnic minorities—the kind of treatment done by such scholars as Thomas Sowell and Glenn Lowry...

...Issues that should be resolved politically will be converted into criminal prosecutions against the executive branch...

...later in the fall, Sam Donaldson quipped, accurately, that the Bork nomination was lost on the beaches of California—where the President and senior staffers spent most of August...

...Throughout July and August of 1987 the left hammered away, not believing its good luck to be able to fire at will...

...indeed, I know of one effort to bar a strong conservative from employment simply because of an alleged lack of loyalty to a high-ranking official...

...And the White House had the benefit of the Justice Department's learning on the independent counsel law...

...When the President and his administration were energetic, it enjoyed substantial success, as witness the tax-cutting bill in 1981, or the liberation of Grenada in 1983, or, at the Justice Department, the revolution in antitrust enforcement pulled off early in the first term...

...They knew, all right...

...Finally, the President did give a speech...

...One reason, I think, is that having run against government for so long, some conservatives found it difficult to adjust to actually governing and easier to do something else—like enjoy Washington...

...So did the non-action against the independent counsel law...

...On the Bork nomination, I remember the answer I got—from a conservative, no less—when I asked why the President hadn't yet been scheduled to give a prime-time television speech...

...Government spending on non-defense programs has stayed about the same...

...I n Federalist Na 70 Hamilton wrote: "Energy in the executive is a leading character of good government...

...And the last, the independent counsel law, concerned the fate of the presidency itself...

...The White House left the issue for the courts to decide—often a mistake, and it proved so in this instance...

...natural power vigorously exerted...

...But he did neither...

...Some conservatives also wasted energy by working hard at being "conservative," in the process creating a sort of conservative ghetto...

...Beyond that, and for the future, the sheer intellectual power of Robert Bork, teamed with that of Justice Antonin Scalia, promised a major shift in Supreme Court jurisprudence...

...This should have been done long before...

...As conservatives think through the lessons of the Reagan years, one should be obvious: It's desirable to have an energetic executive, a President who is willing to use the powers of office in a vigorous pursuit of the most important issues...

...But this is also a poor conception of public service...

...But if you were on the limb of some other tree, you might be sawed off...

...If the people below Reagan weren't in intellectual agreement, it's no wonder the President never acted vigorously in this area...

...Finally, the lack of energy on Nicaragua contributed to the worst crisis of the Reagan presidency...

...E nergy in the executive could have made an important difference in at least three of the four areas: Bork could have been confirmed, the prospects for democracy in Nicaragua could today be much brighter, and government policy on race could more consistently reflect the principle of non-discrimination...

...Intelligence reports from Central America made plain the nature of the problem...

...No, on these issues the shortage of energy must be explained on other grounds...

...And to the degree conservatives believe the executive branch is the one to control, they had better think twice about how much they will be able to do in the post-Reagan era...

...For some personnel specialists, loyalty to a conservative within the administration proved more important than fidelity to principle...

...But such a campaign would have given Reagan a stronger hand in governing and put the White House in a better position in 1986 to fight for Republican control of the Senate...

...He is now resident scholar at the National Legal Center for the Public Interest and a contributing commentator for National Public Radio's 'All Things Considered" prises and assaults of ambition, faction, and of anarchy...

...S uppose there were such a thing as an "energy-meter"—something that could read the energy of the executive...

...After Reagan was briefed on their activities, he decided to announce what had been done, but not to defend it...

...What happened next was predictable: appointment of an independent counsel to investigate the alleged crimes of the executive branch...

...the early criticism of the administration's civil rights policies might have made the White House less willing to bring the government into conformity with the principle of non-discrimination...

...As it happened, the lack of energy on these core issues helped the President's opponents score important victories, the revolutionary thrust of his presidency being substantially blunted...

...Energy in the executive is a leading character of good government...

...And it's needed on the part of not only the President but those around and below him...

...In June, the Supreme Court ruled 7 to 1 in Olson v. Morrison, upholding the independent counsel law...

...On the constitutional power of the executive, the President was faced with a major challenge, not simply to himself but to the institution of the presidency, in the form of the independent counsel...

...He also supported administration efforts against employment quotas...

...But he did so after the hearings had been concluded, long after it was evident Bork would not be confirmed...

...With that one-sided exchange, a pattern was set...

...But for some officials, it seemed that making the rounds, seeing and being seen, was what the job was all about...

...That schedule included an endof-the-day entry, assigning one of the junior staffers the job of this leader's after-hours cabbie...

...if you sat on a branch of the tree of the Hoover Institution, for example, you were in very good shape...

...The type was a familiar one during the Reagan years, found both within and outside the administration...

...everyone knew that...

...These folks talked to each other—but not to the media or to others outside their world, whom they distrusted...

...Foy them, as Amy Moritz has written in a recent issue of Policy Review, professional advancement was "based less on one's success in promoting the conservative agenda [or, I might add, one's success in defining that agenda] than on one's success in demonstrating personal loyalty to anindividual conservative leader...

...A misstep on one issue alone might be enough to outrage personnel totalitarians both within and outside the White House...

...Fortunately, it failed, but only after an exhausting and unnecessary few days during which conservatives spent valuable energy fighting each other...

...Quite a few have pointed to the laid-back nature of the President himself—lazy," Fred Barnes has called him...

...Those of us working on the nomination at the Justice Department had no luck trying to get the President to give a timely television address...

...A failure in judgment, at least...

...And to his credit the President is the one who made Nicaragua an issue...

...When that kind of energy is present, the long-awaited Reagan Revolution might just occur...

...Bork was a non-activist judge if ever there was one, perhaps the finest exemplar of the President's judicial philosophy...

...Even during off hours...

...These people "networked"—indeed there is an organization by that very name...

...16 THE AMERICAN SPECTATOR NOVEMBER 1988...

...But the civil rights debate that should have taken place in the eighties, led by the President and top aides, never did...

...Then there was the loyalty matter, as Moritz has written...

...That, of course, would have meant a decline in personal popularity...

...They invented awards that they could bestow on "name" conservatives (the Borks and Norths), their ceremonies getting mentioned on the inside pages of the Washington Times...

...But do conservatives really want such an executive...

...On civil rights, the President often indicated his personal abhorrence of racial discrimination...

...Reagan has been a good President, a model in many ways, not least of which is that as President he was supremely able to capture a mood or moment, to express his ideas with conviction, and to point Americans toward a better future...

...Even within the Justice Department I heard arguments distinguishing quotas from goals, in the hopes of saving the latter...

...that is, that such aid is fully consistent with the values of liberal democracy...

...Energetic opposition by the President probably wouldn't have affected this outcome, but it could have precipitated a fight with Congress over the law, and a needed one, too: after all, just because a measure is deemed constitutional doesn't mean it's wise...

...Still, no conservative says that the Reagan presidency has produced the once-prophesied Reagan Revolution...

...Accountable to no one, they can do as they please—and some have...

...Four of these in particular merit attention...

...It also requires the will to act, which often involves courage...

...George Will has commented that Reagan is good at being popular...

...A truly democratic Nicaragua now seems a very remote prospect...

...Better at that, I think, than he is at being an energetic executive...

...They threw parties—for themselves...

...Yet Reagan didn't resist the Boland Amendments that sought to restrict what he could do in helping the contras...

...Senator Ted Kennedy's harangue against Bork ("No justice would be better than this injustice") deserved a vigorous response from the President...

...But none came...

...And the seductive quality of the nation's capital, which the Reagans helped glamorize, sucked up valuable energy...

...On occasion he made an effort to go beyond civil rights to discuss issues of substantial importance in many minority communities those involving education, crime, and economics...

...I also saw, on the part of some conservatives, some misdirected energy, especially in the area of personnel...

...But it's THE AMERICAN SPECTATOR NOVEMBER 1988 15 clear, too, that in this area there was a major intellectual failure...

...And whenever there are charges of illegality against high-ranking administration officials, a President will be tempted to refer them to independent counsels, thus relieving himself of the responsibility to inquire into the alleged misdeeds of his officials and take appropriate action...

...The costs to good government will be immense...

...Acquiescing in the Boland Amendments and timid about making its best public case for the contras, the White House created a void that Oliver North and others filled with their own considerable energies...

...and "the capacity for doing work...

...From my spot in the administration, I saw much the same problem, but I would express it more decorously...

...The result of all this various activity was incoherence in policy...

...By Labor Day the Bork nomination was in serious doubt, although the White House showed few signs of concern...