Meeting at Wilmer, Hale with former Solicitor General Seth Waxman

On May 4th, 2005, the delegation from the Constitution, Law, and Justice Committee of the Knesset met with former US Solicitor General Seth Waxman and former Assistant Attorney General Randolph Moss to discuss the self-policing of the executive branch in light of a constitution.

The meeting was opened by Marc Stern, Legal Counsel to the American Jewish Congress, who asked Seth Waxman his opinion on how the executive branch is bound by the constitution without always having to run to the court.

Constitutional Committee Chairman MK Michael Eitan added that Israel would like, in drafting its constitution, to consider one of the central dilemmas of the executive: it must have the power to efficiently and effectively enact policies, but at the same time must avoid overstepping its boundaries and violating rights. What changes, he asked the Americans, would you enact in the constitution, if you had your druthers, in order to balance executive efficiency and protection of constitutional rights? What is the ideal relationship between the three branches?

MK Yuli Tamir asked further what they might leave out of the constitution. Israel, a country with few strong legal traditions, has a natural tendency to legislate everything.

Seth Waxman responded by pointing out that the US constitution says very little about the executive branch. It provides for a president and vice president; George Washington created a secretary of war, a secretary of state, secretary of the treasury, and Attorney General. The Attorney General was meant to advise the president about meaning of the constitution and how federal law should be interpreted; and to represent the US in the Supreme Court. The position of Solicitor General was created a little later on to be the assistant to the Attorney General. The entire structure of the Department of Justice was filled out only after the end of the 19th century. All of these positions, MK Eitan clarified, are derived from ordinary law; they exercise quasi-constitutional power, but they can be changed by ordinary law. Waxman confirmed.

Prior to the creation of the Department of Justice and office of the Solicitor General, the president couldn’t possibly keep abreast of how to interpret every provision of constitution and law. He would get advice from the legal counsel of each department individually, receiving conflicting and interested views. There was no consistency in interpretation of law in the US government’s view, and the Court grew very frustrated about this. The Solicitor General’s office was created to collect and coordinate the various departments’ legal stances for the president.

Today there is also an office of legal counsel which does this; the Deputy Attorney General for the Office of Legal Counsel advises the president, and the Attorney General has become something of a parallel to the Minister of the Interior in Israel.

The Solicitor General harmonizes what the US should say about what particular laws mean, he writes the briefs and argues the cases before the Supreme Court. There is a very strong tradition in having the position of Solicitor General and head of the Office of Legal Counsel be independent, non-political nominations. They tend to be excellent professional lawyers, as they need the respect of the Supreme Court and career professional colleagues, as well as the complete confidence of the president. Both are nominated by the president, and confirmed by the senate.

The Solicitor General speaks for the President, but he rarely actually consults with him. (For example, over Seth Waxman’s 4 years as Solicitor General, he spoke with the President about issues five times. Clinton and Reno trusted him to make both recommendations and decisions).

Edward DuMont, former Assistant Solicitor General, said that one of the failings of the US government is a lack of personal responsibility in the executive. People don’t get fired or resign when something goes wrong, and that is hard to legislate. How do you get people to take a fall for the president? I think we can’t legislate it or establish a forum to evaluate top people in office – that can be a diversion from operation of government. Rather than legislate the internal operation of departments, we should rely on a chain of command.

In deciding how to take a position on a case, the Solicitor General gathers a hierarchical series of recommendations from the offices and various legal departments, and then the career people surrounding the Solicitor General make their recommendations as well. There is transparency within the office, and legal recommendations are put down and defended in writing. This isn’t open to the outside, but it ensures responsibility and accountability in the office. This is also a helpful tool and tradition to have in hearings and confirmations. Senate can ask candidates how they intend to conduct their office.

Regarding Article III of the constitution, the section dealing with the judiciary, it might be about the terms of justices. There is a renewed political interest in whether justices should have some mandatory retirement age.

Professor Asher Maoz of Tel Aviv University asked how the Attorney General or Solicitor General would act regarding a law that they feel is unconstitutional. Would they abide by it? MK Eitan asked for several examples where they won a case against the administration on the constitutionality of the act of the executive; and several examples of cases it lost.

Randy Moss answered that in the Roosevelt administration, when the President wanted to aid England in the war, congress finally authorized a bill that allowed Roosevelt to provide arms to England. However, the law included a provision allowing a committee of the congress to veto specific presidential actions deriving from this authority with which it disagreed. Roosevelt thought this was unconstitutional, and refused to sign the bill – despite the fact that he had fought hard to get it – until they excised the unconstitutional piece. This was an example of a President who took the constitution quite seriously.

The Office of Legal Counsel, however, usually sees unconstitutional provisions in the law as unenforceable. This decision is applied carefully. [In Israel, locus standi, or the right to petition to the High Court of Justice, is very broad; it is the court of first instance, and it may directly consider a law or an act of the executive even if the petitioner cannot show direct and personal harm. Israel has developed a concept of a “public plaintiff.” In the United States, however, the petitioner to the Supreme Court must not only have gone through the entire court system first; he or she must have been harmed directly by the law or act under consideration. Thus while in Israel a law or act can be declared unconstitutional without ever having been exercised, in the US it must be acted upon before it can be struck down.]

[The American Supreme Court is almost never a court of first instance, and only very rarely and reluctantly a court of second instance, when Congress asks for something to go directly to the court. The Supreme Court is not, those present explained, designed for hearing cases and evidence at that level, and is not even necessarily very good at it.]

Thus there must be a pretty high degree of certainty that a law is unconstitutional for the executive to say, “We’re not going to enforce it.” Because in doing so, it takes the decision away from the court, it never acts on the law, it never reaches the court. The executive has shut it down.

In case of doubt, the executive will usually implement the legislation, and wait for it to reach the courts. A recent example was a law passed saying anyone who tests positive for the HIV virus will be expelled from the military. The President asked his Office of Legal Counsel whether this was constitutional, and was advised that it was not. The President, Attorney General, Solicitor General, and the Head of Office of Legal Counsel announced that they believe the law to be unconstitutional, but they will not cross Congress. The Secretary of Defense will be ordered to implement this legislation, and the Court will decide as soon as the first fired soldier files suit against the government in Court.

MK Michael Eitan asked what happens when congress passes a law and the Executive simply ignores it. Congress’s only recourse is to call those responsible in the executive branch in for congressional hearings, take them to task, and if it really wants to, the house can vote to impeach the official for lawlessness. Then the senate votes by special majority on removal from office. This is extremely rare. But the court cannot intervene unless someone brings a suit. The legislature doesn’t have locus standi towards the executive in court.

Seth Waxman: all laws must be signed by the president; until such signature the law is not in effect. The president can veto a bill (in its entirety, not by line-item) either by declaring a veto or by refusing to sign it or act on it. At this point the next move is Congress’s. It can override the president, but for that it needs 2/3 in both houses.

What check is there on the president? If he wants to say to Congress, “Congress, you’re entitled to your opinion and I’m going to ignore it,” Congress’s only recourse is impeachment. But the constitution also says that the president and his staff must “Faithfully execute the laws of the United States.” Whether the president signed it or whether Congress overcame a presidential veto, or even whether it was legislated by a previous president with opposed policies. It is unconstitutional to ignore existing law.

MK Eitan asked for clarification: this game is between the executive and the legislative branch, and the judicial does not intervene? In Israel, he pointed out, the judiciary intervenes in conflicts between the other two branches all the time. MK Yuli Tamir added that the court only does this because Israel lacks a real separation or balance of powers (MK Eitan agreed).