- The Washington Times - Tuesday, February 6, 2001

Attorney General John Ashcroft was confirmed by a 58-42 vote last week despite critics who professed skepticism that he would faithfully execute the laws because of deeply held personal or policy convictions. The areas singled out included abortion, church-state relations, affirmative action and desegregation, gay rights, and drug treatment alternatives to imprisonment.

Some fretted that Mr. Ashcroft might seek a Supreme Court overruling of the landmark Roe vs. Wade (1973) and Planned Parenthood vs. Casey (1992) abortion precedents. Others worried that his enforcement of federal civil rights statutes would be lame.

But contrary to the insinuations of Mr. Ashcroft's detractors, faithful execution of the laws is more than a blind obedience to prevailing Supreme Court precedents and every law enacted by Congress no matter how constitutionally dubious. The executive branch enjoys measured discretion to seek judicial reconsideration of constitutional pronouncements and to desist from enforcing clearly unconstitutional statutes, as both history and prudence corroborate.

The United States Supreme Court has never claimed or practiced infallibility. It has overruled hundreds of cases. Some somersaults have been virtually instantaneous, as with the legal tender decisions of Hepburn vs. Griswold (1870), and Knox vs. Lee (1871), and the compulsory flag salute turnabout from Minersville School District vs. Gobitis (1940) to West Virginia State Board of Education vs.. Barnette (1943). Other reversals have upset long-standing precedents, such as the repudiation of the 58-year-old "separate but equal" doctrine of Plessy vs. Ferguson (1896) in Brown vs. Board of Education (1954), and the Erie Railroad vs. Tompkins (1938) renunciation of a federal common law superior to state law that had been proclaimed a century earlier in Swift vs. Tyson (1842). As Associate Justice Robert Jackson quipped in Brown vs. Allen (1953), "We are not final because we are infallible, but we are infallible only because we are final."

In sum, the idea that Attorney General Ashcroft might seek a reversal of Roe, Casey, or the high court's upending of partial birth abortion restrictions in Stenberg vs. Carhardt (2000) is unalarming. As then Attorney General Robert Jackson maintained in his book "The Struggle for Judicial Supremacy," his duty was not to venerate the Supreme Court or its justices, but to highlight what to him seemed the court's mistakes or shortcomings. Indeed, as liberal icon Justice William Brennan lectured: "Our Constitution is a living document and the court often becomes aware of the necessity for reconsideration of its interpretation only because filed cases reveal the need for new and previously unanticipated applications of constitutional principles."

Challenges to precedents are legitimate, however, only if the attorney general reasonably believes the prospects for overrulings are substantial, not simply theoretical. Otherwise, Supreme Court decrees could be thwarted except for the handful of parties to the typical case.

Take the unanimous Brown desegregation ruling directly binding on only a few school districts. If the attorney general had insisted on endless relitigation of the constitutional question in the tens of thousands of school districts that were not parties to the case and with no serious hope of an ultimate Supreme Court reversal, then the constitutional rights of black schoolchildren would have been needlessly and endlessly deferred a stark abuse of law enforcement discretion that might have warranted impeachment. Indeed,the "Massive Resistance" in the South to the Brown ruling captained by state governors and state attorneys general frustrated constitutionally mandated desegregated schooling for decades, and epitomized government lawlessness through vexing and contrived litigation at its worst. Is there any doubt that Massive Resistance disgraced our sacred constitutional order?

History suggests, however, that new justices or intervening case law could justify an attorney general's quest for new constitutional law. The Supreme Court, for example, quickly reversed course on the constitutionality of taxing religious literature in Jones vs. Opelika (1942) within one year following a change in personnel. Ditto for the 1871 Knox reversal of Griswold one year later.

Intervening case law prompted the Clinton administration to support the overruling in Agostini vs. Felton (1997) of the ban on public employees to teach remedial classes at private schools, whether sectarian or secular, pronounced in School District of Grand Rapids vs. Ball (1985), and Aguilar vs. Felton (1985). And Attorney General Ashcroft might reasonably seek a reversal of the sweeping constitutional barrier to school vouchers proclaimed in Committee for Public Education and Religious Liberty vs. Nyquist (1973) because court membership has been overhauled in the ensuing 28 years and the doctrinal moorings of Nyquist have corroded in such sequel cases as Mitchell vs. Helms (2000). In contrast, at present, neither Roe nor Casey are precedents Mr. Ashcroft might reasonably question in his law enforcement role (as opposed to publicly debating their soundness) because nothing the high court has said since about the constitutional right to an abortion and nothing about the court's membership plausibly indicates that five justices are willing to reconsider either abortion decree.

With regard to enforcing federal statutes, separation of powers obligates the attorney general to enforce federal statutes about which reasonable constitutional arguments can be marshaled in their defense. If that were not the case, a president could sabotage the law making power of Congress by ignoring the United States Code. That was what made acutely troublesome the refusal of Attorney General Janet Reno to defend in Dickerson vs. United States (2000) a 1968 statute governing the admissibility of voluntary confessions in federal cases despite the strong constitutional arguments that could have been mounted on its behalf (and was done by a friend of the court). On the other hand, an attorney general should not enforce a statute that commands no prevailing constitutional support, such as a flag desecration prohibition that the Supreme Court has twice held incompatible with the First Amendment in Texas vs. Johnson (1989) and United States vs. Eichmann (1990), or the current broadcast prohibition on all profane speech. No citizen should be subject to the ordeal and expense of a prosecution known to be futile at the outset.

In sum, as with all enlightened constitutional doctrines, the executive duty to faithfully execute the laws is a matter of degree. Attorney General Ashcroft should not cast aside this time-honored understanding to placate intemperate or unschooled anti-confirmation voices.

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