Constitutional Reflections on Ronald Reagan Centennial

It is well known that the celebration of the now-iconic Ronald Reagan’s 100th birthday has been as much about the promulgating of time-honored myths about the man and the leader as the remembering of genuine accomplishments. As one example, Lincoln Mitchell suggested that the “enormous defense budgets that both create massive debt problems and ensure an aggressive and often disastrous US foreign policy, have their origins in the Reagan years.” (Huffington Post, Feb. 8, 2011)

Ronald Reagan Centennial Website

Perhaps even more classic, however, in the light of the dark memories Americans hold about Richard Nixon’s Watergate scandal, is that Reagan’s handling of the Iran-Contra scandal reflects that the executive actually “improved its capacity for cover-up,” as the Reagan administration, and the Bush administration that followed, “regularly thwarted [efforts to understand] by the strategy of destroying or withholding information, denying classified documents, and issuing presidential pardons.” Louis Fisher, Epilogue: Constitutional Violence, in The Presidency and the Law: The Clinton Legacy 192, 198 (David Gray Adler & Michael A. Genovese, eds. 2002).

More generally, Iran-Contra embodied “what happens when one branch of government abandons separation of power and interbranch checks.” Robert J. Spitzer, The President, Congress, and the Fulcrum of Foreign Policy, in The Constitution and the Conduct of American Foreign Policy 85, 108 (David Gray Adler & Larry N. George eds. 1996) [hereinafter cited as Foreign Policy]. Theodore Draper observed that “if ever the constitutional democracy of the United States is overthrown we now have a better idea how this is likely to be done.” Id. at 110 (quoting Draper).

There is not time or space to retell the entire story, but Iran-Contra can quickly be summarized: “While proclaiming that it would never make deals with terrorists, the Reagan administration secretly arranged the sale of arms to the Islamic regime in Iran, identified by the State Department as a prime instigator of terrorism, in the dizzy hope of winning release of American hostages. Meanwhile, profits from this clandestine commerce were making their way to Nicaragua to support the Contra rebels, in circumvention of a series of amendments offered by Cong. Edward Boland . . . intended to block the supply of American assistance to the Contras.” Donald L. Robinson, Presidential Prerogative and the Spirit of American Constitutionalism, in Foreign Policy, supra, at 125. While the second Bush administration would contend that the only checking device given to Congress was its power over appropriations, defenders of the Iran-Contra strategy contended that, even though the administration never offered a timely objection to these funding limits, Congress was invading the President’s constitutional control over American foreign policy in seeking to limit executive power to divert millions of dollars to finance the Contras. Professor Robinson observed that:

“When President Reagan signed the continuing resolution that contained the strict language of the Boland Amendment, he did not issue a statement claiming that Congress had overstepped its powers and that the administration would continue its foreign policy course in Nicaragua. The attorney general did not challenge the constitutionality of the Boland amendment. The Office of Legal Counsel in the Justice Department did not conclude in any internal memorandum or report that the amendment was invalid or nonbinding.”

Id. at 233.

Later on, of course, defenders of the Reagan administration contended that Congress could not limit the President’s authority to establish American foreign policy by declining to fund measures deemed necessary by the President. But clearly it was “late in the game . . . for the Reagan administration to suggest, after the Iran-Contra affair came to light, that Congress lacked power to deny funds for aid to the Contras.” Michael J. Glennon, Constitutional Diplomacy 291(1996). Embracing the idea that a President can simply ignore and violate acts of Congress, and that he can go forward with prohibited policy because he has obtained non-appropriated funds, from a foreign country, is throw out notions of separated powers and limited government. As Professor Tribe put it:

Stripped of the technical camouflage, the [argument] ultimately reduces to the claim that this President, being somehow outside the government, is above the law . . . . Our whole constitutional system—not to mention common sense—rebels at any such notion . . . . Congress’s control over the purse would be rendered a nullity if the President’s pocket could conceal a slush fund dedicated to purposes and projects prohibited by the laws of the United States.

Glennon, Constitutional Diplomacy, supra, at 295 (quoting N.Y. Times, May 20, 1987).

Congress’s power over appropriations was designed to give the representatives of the people a check on the executive and to empower Congress to play the dominant role in establishing national policy. Part of the point was to limit presidential policy-making power by tying his authority to Congress’s appropriations. An implication is that Presidents lack authority to establish national policy simply by acting without appropriated funds. As Professor Bobbit summarized the relevant effects of Congress’s funding power on executive authority,

“[t]o circumvent Article I by relying on non-appropriated funds, no matter how noble the purpose and no matter how beneficent the source, is to strike at the heart of this idea. This error is compounded by the solicitation of operating funds from foreign governments with whom the federal government alone has institutional – economic, security, and diplomatic – relations.”

Philip Bobbitt, Constitutional Interpretation 72-73 (1991).

The knowing authorization of deliberate circumvention of the Constitution’s allocation of power for establishing national policy presented a much more serious threat to constitutional government than anything that happened during Watergate or in the Clinton administration. Lest we forget the events and their implications, we should also recall that a certain Congressman from Wyoming was largely responsible for the blistering, not to mention unfair, dissenting opinion submitted with the congressional Iran-Contra Report (Iran-Contra Affair: Report of the Congressional Committees), a document that set forth what had happened and its implications for constitutional government—Dick Cheney.

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