North and Deaver Raise Sound Objections

Last week the Tower Commission accused President Reagan of failing to keep his aides in the National Security Council within the bounds of law as they pursued his policies with Iran and the Nicaraguan contras. At the same time, two of his former aides, Lt. Col. Oliver L. North and Michael K. Deaver, were filing lawsuits challenging the constitutional authority of “independent counsel” to investigate them.

One of the great ironies of the embattled Reagan presidency is that their objection is sound. Under the Constitution, only the President is authorized to order the investigation and prosecution of misdeeds by officials of the executive branch, including the White House itself.

In 1978, after years of trying to develop a permanent process to deal with scandals like Watergate, Congress passed the Ethics in Government Act. The statute provides for a panel of three judges to appoint special prosecutors, now called independent counsel, to probe alleged crimes by high-level federal officials.

North and Deaver are contesting the validity of that statute. Their objection is simple. The bedrock principle of the Constitution is the separation of powers among three coordinate branches--executive, legislative and judicial. The statute authorizing the appointment of independent counsel, defining their power and protecting their autonomy violates that core principle, because it usurps the authority and responsibility that the Constitution reposes in the President. The statute injects Congress and the courts into functions that are in essence executive: investigating and prosecuting federal crimes.

The President is not merely the head of one branch of government; he is the executive branch. As Article II crisply puts it: “The executive power shall be vested in a President of the United States of America.” Thus, although the President now has hundreds of thousands of subordinates performing the executive functions of government, those civil servants operate solely as his delegates. Since they are exercising power that the Constitution commits to the President, they necessarily do so only to the extent that the President chooses to let them.

As the Tower Commission recognized, the President is ultimately accountable for both the achievements and the misdeeds of subordinates who act in his name, not because he is merely like the manager of any organization but because the Constitution itself focuses in him both the power and the duty to superintend the affairs of the national government.

Although sparsely worded, the Constitution leaves no room for doubt in this issue. In enumerating his duties, the Constitution directs that the President “shall take care that the laws be faithfully executed.” It is this clause that is the source of the President’s ultimate and indivisible responsibility to ensure that his subordinates obey the law in their own conduct of governmental office. That clause also obliges him to ensure that qualified deputies exercising delegated presidential authority properly investigate and prosecute federal crimes.

As outlined in the North and Deaver lawsuits, the independent-counsel statute suffers from several fatal flaws. Although the Constitution entrusts to the President the exclusive power to appoint all officers of the United States, except merely “inferior” functionaries, the statute says that a group of three federal judges will select the independent counsel, who is to have all the law-enforcement authority of the attorney general, and define the matters that the counsel is to investigate.

Moreover, the essence of the mechanism is to insulate these prosecutors from any supervision by the President or the attorney general and protect them against dismissal. Yet, in a series of decisions stretching back more than 60 years, the Supreme Court has held that the President enjoys inherent and unconstrained power to dismiss any federal official exercising significant executive authority. In short, Congress may not protect the tenure of an official who is exercising the President’s constitutional power and for whom the Constitution makes the President unavoidably accountable.

All this may seem to be a bit of a nuisance, a hypertechnical objection that threatens to frustrate a well-intentioned experiment designed to ensure public confidence in the investigation of alleged misuse of government power on the highest levels. That view, however, would be shortsighted.

The framers of the Constitution could scarcely have foreseen a national government that, two centuries later, would be a bureaucracy as large as the entire population of the 13 original states in 1787. They did not anticipate a government that would be the driving force in social welfare and economic regulation. But it would not have mattered if they had. Their goal in structuring a government was not to avoid inefficiency but to bridle excessive power. Their prescience lay in designing a system of government that would protect liberties by diffusing power among three branches, each cooperating with the others in dynamic tension but each possessing essential functions that the others may neither assume nor frustrate.

The framers “ranked other values higher than efficiency,” Chief Justice Warren E. Burger explained in the “legislative veto” decision, invalidating 200 statutes in which Congress had embodied an expedited mechanism for contesting executive action. He continued: “With all the obvious flaws of delay, untidiness and potential for abuse, we have not yet found a better way to preserve freedom than by making the exercise of power subject to the carefuly crafted restraints spelled out in the Constitution.”

The President’s decision to exercise his authority cannot, however, be made in the isolated shelter of self-interest or personal loyalty. The Constitution itself, after all, commands the President to “take care” that the laws are faithfully executed. As other Presidents have found when their Administrations and intimates came under fire, the voice of an aroused public may be even louder and more compelling than the words of the Constitution.