Constitutional Contras

...Having voted funding for the contras in the past, Congress narrowly enacted the Boland funding restriction and then, only a year later—as White House officials had anticipated—decided that Sandinista intransigence and contra prospects justified direct military aid to the Nicaraguan rebels, after all...

...In the real world,- it may take many months to sort out the legalities of what Colonel North and his colleagues actually did...

...In general, there are plausible theories and plausible arguments justifying a number of different approaches to statutory construction...

...But courts have often taken this liberty with relatively recent statutes, as well...

...ut that is, at bottom, what the curl) rent fuss about the Boland Amendment is about...

...hutzpah, according to the old joke, is the character of the fellow who kills his parents and then pleads for mercy as an orphan...

...A great many people havepersuaded themselves that, even where judges stray very far from the letter of the law or the most probable meaning of the law, they are not favoring one group over another but rather observing a higher impartiality and a higher principle...

...Contemporary civil rights cases also offer dramatic instances of that other bugbear of the "contragate" critics—the use of private agents to get around express legislative prohibitions on particular actions by government officials...

...At any rate, a number of federal courts have ruled that the resulting agreement is binding- on the agency, even where the statute leaves it a larger range of discretion, so that public policy can indeed be fixed in secret negotiations with private parties...

...Ideology allows people to discern obscure or disputable "facts" with privileged clarity—by blinding them to the whole array of other facts that leave other people so much more hesitant about the truth...

...No President can ever sustain a military venture that has been resolutely rejected by Congress...

...W by is contemporary liberal opinion so complacent about such practices when sanctioned by courts and so inflamed about parallel practices when adopted by White House officials...

...A 1970 Supreme Court decision reinterpreting the statute to this effect was so much at odds with the actual words of the act, and so much at variance with its legislative history, that Justice Scalia (before his elevation to the federal bench) once described the Court's ruling as "statucide...

...The resulting new policy is made public—as the continuing efforts of the contras were public knowledge—but the negotiations are usually conducted in secret, making it difficult for outsiders to determine whether officials fought hard against the agenda of the public interest lawyers involved or cheerfully agreed to bind themselves to whatever these private advocates urged...

...It may actually take years...

...Even in this era of judicial activism, however, courts have not dared to subject foreign policy to their own elevated conceptions of law or principle...

...If interpreted narrowly, the Boland Amendment might be read as simply prohibiting the direct transmission of funds from the federal treasury to the contras—in which case no one could be charged with violating the law because this was never done...

...All the charges of illegality—not to say the hysterical talk about a "constitutional coup d'etaf turn on questions of interpretation...

...But one thing is certain...

...Their own foreign policy nostrums would not get very far, if judged by public support for their consequences...

...In statutory cases—such as the "Iranian Assets case," questioning the legal authority of President Carter to consign the financial claims of American companies to a jerry-rigged "international tribunal"—the Court has always shown great deference to executive interpretation of "the law," even when it seems rather strained...

...What often happens in "public interest" litigation is that the challenged government agency negotiates, a "settlement" of the suit with "public interest" advocates out of court—and out of the public eye...

...As it happens, "ideology" is one of Anthony Lewis's favorite sneer words against the "radical right...

...The same pattern of creative reconstruction of statutes—and large-scale delegation of public authority to private actors to evade constraints on public officials—is quite evident in many other fields of contemporary law...

...New York Times columnist Anthony Lewis thinks the Reagan Administration disregarded existing legal constraints when it organized private funding for the Nicaraguan resistance movement...

...But as everyone now knows, the Supreme Court has repeatedly interpreted this law to permit the exact quota policies its sponsors claimed they were prohibiting...

...Must statutes be interpreted to mean what their leading congressional sponsors thought they meant...

...THE AMERICAN SPECTATOR JULY 1987 13 W hether the Court's approach to the Civil Rights Act was appropriate or not, it was certainly not universally denounced...

...Fortunately modern English has a word to cover this all too common phenomenon of our time...

...The word is ideology...

...And this is not esoteric legal lore but a dominant fact of our time, known to every casual reader of the editorial pages of the daily press...

...The insistence that the Reagan Administration did something terribly wrong in not honoring the Boland Amendment to the letter—or rather, in not honoring its animating spirit—is finally an insistence that foreign policy be conducted by higher "principles," regardless of circumstances or consequences...

...Over the past twenty years, for example, there has been an ongoing national debate over the proper construction of the Civil Rights Act of 1964, a debate that has been pressed with particular vigor by the Reagan Justice Department...

...In the past two decades, the meaning of this fundamental statute has been entirely transformed by judicial action, in order to allow challenges to administrative policies by "public interest" organizations—meaning private advocates—like the Nader enterprises...

...If indirect funding of the contras was a "private foreign policy," this surely is private domestic policy...

...Particular favored private groups therefore get to determine the extent to which other citizens will be coerced by the government...

...See almost any one of the writings of Ronald Dworkin or Laurence Tribe from the past decade for examples of this outlook at work...

...Jeremy Rabkin, whose column "Constitutional Opinions" appears frequently in these pages, is assistant professor of government at Cornell University...

...Beyond the partisan maneuvering in the present controversy, I think there is a deeper ideological compulsion at work...

...Indeed, the same voices now condemning the Reagan Administration for disregarding the Boland Amendment have been among the loudest in decrying its efforts to reassert the original congressional intent behind the Civil Rights Act...

...14 THE AMERICAN SPECTATOR JULY 1987...

...And with reason...

...In mid-May, for example, the New York Times—beneath its 37th (or perhaps its 73rd) indignant denunciation of the Reagan Administration for "illegally" aiding the contras—ran an editorial applauding the Court's affirmative action decisions and rebuking Reagan appointees for criticizing these decisions: Unlike the critics, the Times noted, "the Court does not pretend that the 1964 law created the world anew and with complete equality...

...Yiddish has no word for mass brazenness, perhaps because it was the folk language of people too pious to contemplate the phenomenon...

...The congressional sponsors of this historiclegislation swore up and down during the legislative debates that this law would not lead to racial quotas or preferential treatment for racial minorities...

...Should doubts be resolved in favor of broad and generous constructions or in favor of narrow and literal constructions...

...In other words, even the contemporary Supreme Court has implicitly acknowledged that it would be futile and absurd to try to conduct foreign policy in accord with judicial principles and judicial conceptions of impartiality...

...The question is how the executive must interpret temporary legislative enactments when Congress itself is uncertain and ambivalent about larger policy directions...

...With more candor, Justice Blackmun, confessing his "misgivings . . . concerning the extent to which the legislative history" of the Civil Rights Act could actually "support" the Court's endorsement of preferential treatment of minorities, still argued in the 1979 Weber case that "additional considerations, practical and equitable, only partially perceived if at all, by the [1964] Congress, support the conclusion" against the words of the statute and in favor of benign racial quotas.' 'This reasoning echoes the frequently advanced argument that creative construction is more appropriate for older statutes, enacted under circumstances no longer obtaining, than for recent enactments, reflecting the up-to-date response of a recently elected Congress...

...When Lewis denounces this policy as "an attempted constitutional coup d'eta0—after publishing hundreds of columns celebrating the courage of activist judges for disregarding existing law in other areas—this might be described as chutzpah...

...When large contingents in Congress and larger numbers of political activists around the country take the same line—or rather the same contradictory lines—chutzpah doesn't quite cover the phenomenon...

...The principal charge seems to be that by organizing private American donors and foreign governments to contribute funds to the contras—or by diverting funds received from the Iranian weapons sales—White House officials violated the so-called Boland Amendment, which prohibited the expenditure of U.S...

...And if changing circumstances or changing congressional attitudes are the touchstone of deference, the Boland Amendment was threatened with obsolescence the day it was enacted...

...Chutzpah, in other words, is a singular kind of impudence, displayed only by the unusually shameless...

...In domestic policy, liberals seem to take it for granted that the public government of Ronald Reagan should be reenforced by private adjuncts like the Natural Resources Defense Council or the NAACP or the Nader enterprises—and all the better if regulatory agencies negotiate agreements with these private advocates under judicial rather than White House sanction...

...On the contrary, they insisted, the law would prohibit such practices...

...But somehow the Times does seem to think the Boland Amendment "created the world anew" and "with complete" security for congressional posturing—and denounces the idea that "the Boland Amendment was as complex or vague as most of its violators claim...

...Rep...

...Only last year, in International Association of Firefighters v. City of Cleveland, the Court ruled that federal courts could enforce affirmative action quotas notwithstanding an express prohibition in the Civil Rights Act, stipulating that "no order of the court shall require .. . the hiring, reinstatement or promotion of an individual . . . if such individual was refused employment or advance-ment . . . for any reason other than discrimination on account of race...

...Boland, however, like many other partisan critics of the Reagan Administration, thinks his amendment should be interpreted more broadly and that, under a broader reading, it did prohibit the indirect funding maneuvers organized by White House staffers...

...And to reassure the doubters, the sponsors of the Civil Rights Act inserted a variety of explicit assurances to this effect...

...Take the Administrative Procedure Act of 1946, which makes administrative agencies responsible for their own legal and policy decisions, except where a private challenger can show that an agency policy has deprived him of some recognized legal right...

...Only the intoxications of ideology can explain such mass brazenness...

...The Supreme Court has consistently refused to decide constitutional challenges to the exercise of presidential war powers or treaty powers...

...But few of those up in arms about the "attempted constitutional coup d'etat" in the "contragate scandal" seem to be at all troubled by this ongoing distortion of constitutional forms...

...Of course, Congress has the ultimate power to end any American military commitment it really wants to end—just as it imposed an abrupt end to American military involvement in Southeast Asia in 1974...

...Justices Brennan and Marshall have claimed in several opinions that the legislative history of the 1964 Civil Rights Act is really not so clear regarding congressional intent—a claim which is not easy to swallow after a fair reading of the debates...

...But the word is still a good one, where it fits...

...The Justice Department has repeatedly argued in court that when Congress prohibited "discrimination on the basis of race" it meant what it said and that it meant this to apply to discrimination against whites as well as discrimination against blacks...

...But a majority of the Court ruled that if an employer—even a public employer like a city fire department—negotiates such an open-ended "remedial" quota scheme in response to a discrimination suit, a court may then give binding force to such an agreement and subsequently enforce its terms because it is not, in origin, an "order of the court...

...If interpreted narrowly, the Boland Amendment might be read as simply prohibiting the direct transmission of funds from the federal treasury to the contras—in which case, no one could be charged with violating the law because this was never done...

...For such people, the fact that judges are not answerable for the consequences of their decisions makes them uniquely fit to translate law into higher "principles...

...The "intent" of the enacting Congress is not the only approach adopted by federal courts today, nor the approach most favored by our leading liberal legal scholars...

...Many Administration critics now seem most eager to import "principles" into foreign policy...

...government funds in this cause...

...Principles" are very compelling to contemporary liberal opinion, certainly more so than mere legality...