Constitutional History, 1977–1985

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CONSTITUTIONAL HISTORY, 1977–1985

As America moved from commemorating the bicentennial of the declaration of independence to commemorating the bicentennial of the Constitution, the political order was in apparent disarray. Constitutional history is, primarily, an account of changes in the distribution of power and authority within a regime. At least since 1933, political power in the American regime had shifted toward the federal government, and, within the federal government, toward the executive branch. Commentators referred to an "imperial presidency"; and yet no one since dwight d. eisenhower had held the presidential office for two full terms. john f. kennedy had been assassinated; lyndon b. johnson had abandoned the quest for reelection; richard m. nixon had been forced to resign; gerald r. ford, the appointed vice-president who succeeded Nixon, lost his bid for election in his own right. jimmy carter, who defeated Ford, was to prove unable to carry the burden of the presidency, and so to be crushed in his bid for reelection by the landslide that elected ronald reagan.

The national consensus about what the government should be and should do, at bottom a consensus about the meaning of the Constitution, was breaking down. No longer did national majorities automatically form behind the notions of positive government, of redistribution of wealth and incomes, or of solving anything identified as a "national problem" by creating a new administrative agency within the federal bureaucracy. There were indications that a new consensus was forming, but it was not yet fully formed. Less clearly than in the past—say, in 1800, 1832, 1860, or 1932—was the new consensus readily identified with the program of a particular political party, although the revitalization of the Republican party gave it the better claim to such identification.

Constitutional history can be understood either broadly or narrowly. In the broad sense, the constitution is the arrangement of offices and the distribution of powers in a country, it is how the country governs itself. In a narrow sense, the Constitution is a document in which the framework for self-government is spelled out. The process of constitutional change in the United States most often involves redistribution of power without constitutional amendment.

Formal amendment of the Constitution is a rare event. Only thirty-two amendments have ever been proposed by Congress, and two of those were pending as 1977 began; by 1985 both had died for want of ratification. The equal rights amendment (ERA), ostensibly a guarantee that women and men would be treated equally under the law, but potentially a blank check for expansion of federal and judicial power, had been proposed in 1972. The district of columbia representation amendment, which would have made the national capital the equivalent of a state for most purposes, had been proposed in 1978. Even as those proposals failed to obtain the necessary votes in state legislatures, there was popular demand for more amendments: to mandate a balanced federal budget; to proscribe school busing as a remedy for de facto school segregation; to permit prayer in public schools; and to overturn the Supreme Court's proclamation of a constitutional right to abortion.

Amendments to accomplish each of these objectives were introduced in Congress, and the ERA was reintroduced, but none was proposed to the states. Indeed, only one amendment received a two-thirds vote in either house of Congress: the balanced budget amendment passed the Senate, but died when the House of Representatives failed to act on it. In the case of the balanced budget amendment, there were petitions from thirty-three states (one less than constitutionally required) calling for a convention to frame the proposal. Although there was much speculation among politicians, academicians, and pundits about how such a convention might work and whether it could be restricted in its scope, the failure of a thirty-fourth state to act made the speculation at least temporarily moot.

For three decades, constitutional innovation had been centered on the judicial branch. Between 1977 and 1985, however, constitutional development centered on the contest between Congress and the executive branch for predominance. The most important constitutional decision of the Supreme Court during the period, immigration and naturalization service v. chadha (1983), passed on a phase of that contest.

The only uniquely American constitutional doctrine is that of the separation of powers attended by checks and balances. The embodiment of that doctrine in the Constitution set up a constant rivalry for preeminence between the political branches and an intense jealousy of powers and prerogatives. Beginning in the franklin d. roosevelt era, the President—or the institutionalized presidency—seemed to acquire ever more power within the political system, and appeared to have acquired a permanent position of dominance. But the vietnam war and the watergate crisis led to a resurgence of Congress, represented especially in the War Powers Resolution of 1973 and the congressional budget and impoundment control act of 1974.

The seizure of the American embassy in Iran by Islamic revolutionary guards in 1979 set the stage for reassessment of the constitutional status of the war powers. President Carter in April 1980 ordered the armed forces to attempt a rescue of the American citizens held hostage in Tehran. The secrecy necessarily surrounding such an attempt precluded the "consultations" mandated by the War Powers Resolution. When, through the coincidence of bad planning and bad weather, the operation proved a costly failure, congressional critics were quick to denounce Carter for his defiance of the law—some going so far as to call for his impeachment. The hostages subsequently were released as the result of an executive agreement by which Carter canceled the claims of some Americans against the revolutionary government of Iran and caused other claims to be submitted to an international tribunal rather than to American courts. This settlement of the hostage crisis appeared to some observers to exceed the scope of presidential power, but it was upheld by the Supreme Court in dames & moore v. regan (1981).

The War Powers Resolution continued to bedevil presidential conduct of foreign affairs during the Reagan administration; but the real character of that controversial resolution was revealed by the contrast between two incidents involving American military forces. In 1981 President Reagan, at the request of all of the governments of the region, and in conjunction with two foreign allies, detailed a battalion of marines to Beirut, Lebanon, as part of an international peacekeeping force. The operation was not of the sort explicitly covered by the War Powers Resolution, and Reagan, although he communicated with members of Congress, did not take steps to comply with the consultation or reporting requirements of the resolution. Congress, however, unilaterally acted to approve the President's course of action rather than precipitate a confrontation over either the applicability of the resolution or its constitutionality. Several months after a suicide bomber killed more than 200 marines, the President withdrew the rest of the marines from Lebanon, conceding a major foreign policy failure; but Congress, because it had acted affirmatively to approve the operation, was in no position to condemn the President for that failure.

Subsequently, in 1984, the President authorized a military operation to rescue American citizens trapped in the small Carribean nation of Grenada and to liberate that country from a Cuban-sponsored communist dictatorship. Such an operation was precisely within the terms of the War Powers Resolution, but it was planned and executed in secrecy and, again, the President complied with neither the consultation nor the reporting requirements of the resolution. However, because the operation was perceived as a success, most members of Congress refrained from complaining about the breach of the War Powers Resolution.

As the War Powers Resolution represented the resurgence of Congress in the foreign policy arena, the Congressional Budget Act was designed to reassert congressional control over government spending priorities. The federal budgetary process had been introduced in the 1920s to replace the chaotic amalgam of uncoordinated appropriations by which Congress had theretofore allocated federal revenues. But the executive budget, while coordinating expenditures and subjecting them to a common annual plan, remained detached from the appropriations process; hence disputes arose between the branches, especially when the aggregate of appropriations exceeded the executive's estimate of revenues. The deferral and cancellation of appropriated expenditures—called impoundment—became especially controversial when President Nixon was accused of using them for political, rather than economic, reasons.

The 1974 act purported to solve the problem by making budget planning a congressional function and by linking budgeting and appropriations in a single process. But, because the internal structure of Congress is not conducive to unified decision making and because the executive branch has not conceded that the detailed planning of expenditures is properly a legislative activity, the revised budget process has not been successful. The national government commonly operates for most of the year on the basis of resolutions authorizing continued spending at some percentage increase over the previous year's spending plus numerous special appropriations.

Between 1977 and 1985, as, to a lesser degree, between world war ii and 1977, one of the great tests of constitutional government in America was the fiscal crisis resulting from persistent excesses of governmental expenditures over governmental revenues. Under constant political pressure to maintain or increase expenditure levels, but facing the unpopularity of increases in taxation (combined with the economic difficulty that increased tax rates may, by diminishing the tax base, actually result in lower revenues), Congress has resorted to borrowing to finance chronic deficits. At the end of 1985, Congress enacted, and President Reagan signed, a law providing for automatic reductions of appropriations when projected deficits reached specified levels. However, the ink was hardly dry before that measure (the grammrudman-hollings act) was challenged as unconstitutional, even by some members of Congress and some representatives of the administration.

State legislatures, commonly required by their state constitutions to balance their own annual budgets, have petitioned Congress for a convention to propose a balanced budget amendment to the federal constitution. How even a constitutional mandate could be enforced to make Congress do what it seems unable to do, that is, to make difficult choices about public affairs, remains unclear. Meanwhile, the Congressional Budget Act exists to frustrate any attempt of the executive branch to supply the decision making.

Yet another device by which Congress attempted to reassert itself in the contest for dominance under a constitution that separates powers was the legislative veto. Long before 1977, the delegation of power to the executive branch and to various independent regulatory agencies was so great that the published volumes of federal regulations exceeded in number by many times the volumes of federal statutes. In statutes delegating legislative power to administrative bodies, Congress began to include provisions allowing Congress, or one house of Congress, to deprive agency actions of effect by simple resolution. In June 1983 the Supreme Court, in immigration and naturalization service v. chadha, held that the legislative veto, in some or all of its forms, was unconstitutional. The effect of the Chadha decision on legislative veto provisions that differed significantly from that in the Immigration and Nationality Act remained unclear for some time after the decision, and Congress continued to enact new legislative veto provisions after the decision. The real winner in that struggle for power, however, was not the President, but the bureaucracy.

Congress also asserted itself in more traditional ways, especially by exploiting the constitutional requirement that certain presidential actions have the Senate's advice and consent. One category of such action is treaty making. President Carter suffered embarrassment over the panama canal treaties and defeat on the second Strategic Arms Limitation Treaty. The Panama Canal debate was the first extended debate on a major treaty since that on the Treaty of Versailles in 1919. The treaty was signed in September 1977 but the Senate did not consent to its ratification until the spring of 1978. The vote was 68–32 (only one affirmative vote more than required) and the Senate attached a "reservation" to the treaty, asserting that the United States could intervene militarily if the canal should ever be closed; the reservation nearly caused Panama to rescind its ratification of the treaty. President Carter signed the strategic arms treaty in July 1979 at a summit meeting with President Leonid Brezhnev of the Soviet Union. Although trumpeted as a major foreign policy achievement, the treaty was delayed in Senate hearings and finally shelved in 1980 after the Soviet Union invaded Afghanistan.

President Carter vigorously asserted the presidential treaty power when, after recognizing the People's Republic of China in Beijing as the lawful government of all of China he unilaterally abrogated the long-standing mutual defense treaty between the United States and the Republic of China on Taiwan. An affronted Congress immediately provided for a United States Institute to represent American interests in the Republic of China while delaying for over a year Carter's request that trade preferences be granted to the mainland regime. Congress was unable to salvage the mutual defense treaty, however; and the Supreme Court held in goldwater v. carter (1979) that members of Congress lacked standing to challenge the President's action in court.

The other category of action requiring Senate approval is appointments. The Senate, although nominally controlled by the President's own party, frequently used confirmation hearings and votes to express disapproval of certain Reagan administration policies, especially the administration's reluctance to impose and enforce affirmative action requirements. The Senate delayed for over a year appointment of Edwin Meese to be attorney general, and rejected outright the promotion of William Bradford Reynolds to be associate attorney general. Although Reagan's nomination of sandra day o'connor to the Supreme Court (the only nomination to the Court between 1977 and 1985) was approved rapidly and without serious controversy, several other judicial appointments were delayed or rejected.

Another signal characteristic of American constitutionalism is federalism. From the mid-1930s on, the balance of power between the national government and the states has been shifting steadily in favor of the national government. President Reagan came to office pledging a reversal of that trend. However, his proposal for a "new federalism," in which governmental functions assumed by the national government would be relinquished to the states, was coolly received not only by Congress but also by state politicians, who feared that their responsibilities would increase even as their revenues continued to decrease. Somewhat more successful was Reagan's proposal to replace the myriad of categorical federal grants in-aid, by which the national government partially funded certain mandated programs and set the standards by which the programs were to be run, with block grants.

Congress, however, has increasingly imposed conditions and restrictions on the use of block grant funds; so even the limited victory may prove hollow. Although conservatives like President Reagan frequently express a principled aversion to the use of conditional grants of money as a means to coerce the states into acceding to federal goals and programs, they have not been so averse in practice. Examples of new uses of the taxing and spending power to accomplish legislative goals not strictly within Congress's enumerated powers include: a requirement that hospitals receiving federal funds perform certain life-saving measures on behalf of handicapped newborn children; a requirement that states, as a condition of receiving highway building funds, enact certain provisions to counter drunken driving; and a requirement that schools, as a condition of receiving federal aid, permit religious groups to meet in their facilities on the same basis as do other extracurricular organizations.

Whether the election of 1980 wrought an enduring change in the constitution of American government remains an open question. Although President Reagan decisively defeated former Vice-President Walter F. Mondale in 1984, the House of Representatives remained under the control of Carter's and Mondale's party. And the Senate, even with a Republican majority, did not prove to be so committed as the President to reduction of the role of the federal government in American society. Nevertheless, Reagan had considerable success in achieving the deregulation of some kinds of businesses and in returning to private enterprise some activities that had come under the ownership and management of the federal government. On the other hand, the heralded "new federalism" did not cause a resurgence in the relative importance of the state governments, and federal control continued to be maintained through the use of conditions attached to grants-in-aid. At the bicentennial of the Constitution, it is still too early to say whether Reagan effected, as he said he would, "another American revolution."

Dennis J. Mahoney
(1986)