Justice Department ‘Out of Control’?

At a recent meeting with some conservative leaders, White House Chief of Staff James Baker startled those in attendance by remarking that the Reagan Administration’s own Justice Department was “out of control.”
 
“Out of Control” is, in the eyes of many, and understatement for a department which ahs drafted memos declaring Reagan campaign promises unconstitutional, has forwarded a Supreme Court candidate without thoroughly researching her views on abortion and has continued to actively pursue a liberal agenda of a policy-making staff largely held over from the Carter administration. 
 
Speaking on the House floor, Rep. Larry McDonald (D-Ga.) summarized the problem when he noted: “The Department is consistently taking positions in both domestic and foreign affairs areas that are totally alien to what was promised the America people in the election of 1980…leftists are still with us in the Justice Department.  It also appears that after the President at best is being tendered misinformation that is causing deep consternation among that majority of the American constituency that elected him.”
 
Among the more recent anti-conservative efforts by the department are two draft memoranda, which were prepared and given limited circulation within the Administration.  One would have declared tuition tax credits unconstitutional.  The other would have held that Congress is unable to remove jurisdiction to prevent federal courts from issuing controversial rulings and promoting abortion and forced busing and prohibiting prayer in public schools.
 
This latter draft opinion was declared in spite of the fact that the Constitution clearly subjects the Court’s jurisdiction to “such Exceptions, and such…Regulations as the Congress shall make.”  Because of intense anger from Reaganite conservatives, the Justice Department now refuses to confirm or deny the existence of either these opinions.
 
But those are just the most recent in a series of controversial Justice Department positions.  From information gathered from a variety of reliable source, we have learned of Justice Department position papers that would:

  • Declare the legislative unconstitutional. (This opinion, which was apparently prepared by a Carter holdover using language taken from a Carter Administration opinion on the same subject, would divest Congress of one of the most important tools for controlling a runaway bureaucracy.
  • Holding the Helms anti-busing amendment unconstitutional. (Robert McDonald, the Department’s chief lobbyist, had to be prevented from lobbying in favor of racial busing by White House intervention.)
  • Finding that an anti-affirmative action amendment in the House was unlawful because it constituted “legislating” on a “money bill.” (If the anti-affirmative action amendment is unlawful, then presumably so is the Hyde Amendment, which has been upheld by the Supreme Court

In fact, another Cabinet-level Reagan Administration official has stated privately that the Justice Department had to be bludgeoned into compliance with the Reagan Administration’s policy toward forced busing.
 
Because of these activities, it does not surprise observers that the Justice Department did not regard as important Justice O’Connor’s positions on abortion and the Equal Rights Amendment.  The Justice Department also continues to resist a suit to declare the ERA extension unconstitutional, which would bury the amendment once and for all.
 
Ironically, the White House’s problem can be traced back to its refusal to get involved in Justice personal decisions.
 
Conservatives on the White house personnel team were prohibited from forcing conservative, politically astute candidates on the Justice Department, on the grounds that Atty. Gen. William French Smith was himself a conservative and was, after all, Ronald Reagan’s personal attorney. When Smith delegated staffing functions to non-conservative Deputy Atty. Gen. Edward Schmults – a Wall Street lawyer with no interests in social issues – that paved the way for non-conservative staffing in all of the Department’s highest positions.
 
There is, for example, the Assistant Attorney General for Lands, Carol Dinkins.  A member of the Sierra Club for many years, Dinkins has been described by a member of her own staff as having little expertise and few opinions on the environment al issues with her 300-man division is charged with litigating.  IN the meantime, division employees are continuing to leak confidential information to liberal environmentalist groups, according to reliable conservative sources.
 
Then there is Jonathan Rose, Assistant Attorney General in charge of the Office of Legal Policy. A confidant of former Atty. Gen. Edward Levi confides that Rose was removed from the same position by Levi and transferred to a job where his principal function was speech-making.
           
Rose has retained a Carter holdover, Deputy Assistant Atty. Gen. Ronald Gainer, to push for recodification of the federal criminal code.
 
Gainer startled conservatives during the 96th Congress by advocating a recodification bill which would have watered down federal pornography laws, massively increased penalties for regulatory offenses by legitimate businessmen, decriminalized marijuana and generally reduced penalties for many drug offenses, repealed a major portion of the Hatch Act and created a new abortion funding program (in the “technical amendments”).  Now, Gainer is back with a slightly updated version of the same bill.  The situation is made even worse by the fact that the department’s commission on violent crime is prepared to issue recommendations for stringent new gun control laws, according to sources close to the gun lobby.
 
William Bradford Reynolds, who has been appointed to lead the Department’s Civil Rights Division, is another appointee who was opposed by many conservatives.  Reynolds, who has no significant experience in the civil rights area prior to coming to Justice, has apparently been totally co-opted by the radical holdover elements within that division.

Within a very short space of time, the Department (1) rejected the Chicago school integration plan as insufficiently far-reaching, (2), vetoed Virginia’s redistricting plan because it failed to maximize black voting strength in Norfolk and (3) conducted a straw poll on Capitol Hill in order to determine the Department’s position on extending the Voting Rights Act.  This was the same division, which, just before Reynolds arrived, agreed to a court settlement invalidating a federal employment test for upper-level bureaucrats on the basis of a high failure rate by minorities.

Finally, the Reagan Justice Department has:

  • Forced the conservative Washington Legal Foundation and 16 conservative senators out of a suit in which they were attempting to defend federal government aid to El Salvador against challenges from liberal representatives.
  • Come out in opposition to an amendment sponsored by Sen. Dale Bumpers (D.-Ark.), which would shift the presumption and burden of proof which currently favors government agencies in suits against private parties.
  • Reportedly attempts to “take a dive” on the case challenging men-only registration, with insiders telling U.S. News & World Report that Department employees favored constitutionally overturning the registration law that was eventually upheld by the Supreme Court.
  • Continued a guilt to force the building of low-income housing in Yonkers on sites chosen by the Justice Department on the grounds that Yonkers violated the Constitution by building low-income on HUD-approved sites which subsequently became residentially black.

In the words of one Capitol Hill conservative who closely follows Justice, “No one in the Carter Administration – not Sam Brown, not Joe Califano, not Carol Tucker Foreman – has done as much damage to the conservative as the Justice Department has during the first six months of the Reagan Administration.”


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