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Sunday, January 8, 2017

Reagan and the Law

At Bloomberg, Cass Sunstein recalls his time as a young lawyer in the Justice Department.  The Reaganites, he said, came in and did two smart things.
First, they reassured an anxious civil service. Within the Justice Department, for example, no one doubted that important policies were going to shift, sometimes in dramatic ways. But William French Smith, Reagan’s incoming attorney general, made it clear to career staffers that he deeply admired their traditions and their professionalism. Far from giving federal employees a sense of opposition and suspicion, he said (and demonstrated every day) that he liked and respected them.
Theodore Olson, the new head of the Office of Legal Counsel, where I worked, did the same thing -- and more. Charming and warm, he offered an immediate sense of humility, emphasizing how much he had to learn.
Within a month, lawyers who had faithfully served a Democratic administration had become fiercely loyal to Smith and Olson, and were proud to work for them. That was critical for the new president, because he had to depend on thousands of career staff for both information and execution.
Second, Reagan and his team sent unambiguous signals about the primacy of law. Many of Reagan’s supporters wanted him to venture some pretty dramatic changes -- for example, overruling Roe v. Wade (which protects the right to abortion) by congressional enactment; stripping the federal courts of jurisdiction in controversial areas; getting federal judges out of the business of school desegregation; and restoring school prayer.

Early on, however, the White House made it clear to the government’s lawyers that it wanted objective legal advice. Even more important, the ultimate authorities (including the president) bowed to that advice, even if it turned out to be a firm “no.” If the Department of Justice said that a particular course of action was legally unauthorized, the White House wouldn’t pursue it.