GOVERNMENT : White House Use of Rules, Courts, Veto Leaves Congress Feeling It’s on Sidelines

According to the civics textbooks, Congress makes the laws, the President has the duty to make sure those laws are “faithfully executed,” and the Supreme Court interprets the laws.

But that’s not the way it worked in the recent Washington clashes over civil rights and the “gag rule” in family planning clinics.

In both instances, the Republican Administration used the regulatory process or legal appeals to bring out a change in a longstanding interpretation of the law. The Republican-dominated Supreme Court upheld the White House view. When lawmakers in the Democrat-dominated Congress sought to rewrite the law to correct what they saw as the mistaken view of the Administration and the court, President Bush vetoed the new legislation.

The result is that the lawmakers now need a two-thirds majority in both the House and Senate to bring the law into line with their original intentions. The President’s action raises a new question: Who then is making the laws: Congress, or the White House and the courts?

“It’s a power grab by the White House,” said Rep. Don Edwards (D-San Jose), chairman of the House subcommittee on civil and constitutional rights. “He has used the veto to put handcuffs on us. That’s not what our Founders had in mind.”

Harvard law professor Charles Fried, the solicitor general in the Ronald Reagan Administration, disagreed. “This is not a constitutional event, and I wouldn’t dress it up as that. It is a pure political event,” he said. Since the President disagrees with the new legislation passed by Congress, he has the time-honored power to veto it, he said.

BACKGROUND: Both legislative fights grew out of aggressive moves by the Reagan Administration to reshape the law. Unable to sway a majority of Congress, Reagan in his final years in office turned to the regulatory process and the courts.

Frustrated with his inability to halt legalized abortion, Reagan in 1988 ordered a change in the regulations governing the 18-year-old subsidy program for family planning clinics. This $200-million program served about 5 million poor women a year. The 1970 law prohibited using abortion “as a method of family planning.” This had been interpreted to mean the clinics could not provide abortions or encourage women to seek abortions. However, doctors and nurses were told they could discuss abortion and other medical options with their pregnant patients.

Reagan’s new rules prohibited doctors from telling women of abortion as a medical option. Moreover, doctors were required to refer pregnant patients for prenatal care. In May, the Supreme Court on a 5-4 vote upheld these rules.

The ruling, in the case of Rust vs. Sullivan, set off an uproar on Capitol Hill. Congressional leaders said the “gag rule” violated the intent of the original law and they vowed to overturn it.

The Senate voted 72 to 25 to allow abortion counseling, while the House did so, 272 to 156.

But the President vetoed the bill last week, and the House voted 276 to 156 to override it, short of the two-thirds majority by 14 votes. Though the “gag rule” does not represent the view of most lawmakers, it stands now as federal law.

The civil rights legislation followed a similar course, but with a different ending.

In 1988, Reagan’s third appointee to the Supreme Court, Justice Anthony M. Kennedy, took his seat, forming a new conservative bloc on civil rights. In briefs to the court, the Justice Department urged the high court to roll back several existing interpretations of federal anti-discrimination laws. In other cases, the more conservative court acted on its own. In six rulings in the spring of 1989, the high court limited the scope of federal law, for example, by ruling that a black employee subjected to racial harassment on the job may not sue for damages.

In response, Democrats and moderate Republicans in Congress vowed to overturn the decisions and to restore the earlier interpretation of the laws. But President Bush balked. He labeled the new legislation a “quota bill” and vetoed it in October of last year. The Senate fell one vote short of a two-thirds majority to override it.

But the civil rights coalition, led by Sens. John C. Danforth (R-Mo.) and Edward M. Kennedy (D-Mass.), kept pressing. Last month, when it appeared they had a veto-proof majority to override a second threatened veto, Bush decided the latest version of the bill would not cause “quotas” and he would sign it.

THE ISSUE: Former Reagan Administration lawyers say the political clash between the two branches of government shows the system is working. “I don’t think this is a distortion of the democratic process. The framers (of the Constitution) gave the President a very big voice in the creation of legislation,” said Theodore B. Olson, a Washington attorney who served in the Reagan Justice Department.

But Democrats and some Republicans in Congress are frustrated, contending the White House is trying to use the regulatory process and vetoes to write a minority view into law.

“I had hoped we would see more moderation on the part of the Administration,” said Sen. Paul Simon (D-Ill.), chairman of the Senate subcommittee on the Constitution. “I think we are in real danger of stalemate.”