Legislative Intent vs. Executive Inaction

GUEST: Stephen M. Axinn
VTR: 12/06/07

I’m Richard Heffner, your host on The Open Mind … and I realize now how passing strange it is that in all the years of the second Bush Presidency, we’ve never spoken here about certain of the more unfortunate implications of its much touted concept of the unitary executive.

For instance – entirely aside from matters of war and peace – when legislative intent is considerably undermined by executive inaction, what must be the fate of an American system of government based on the seminal concept of the separation of powers…and of a proper respect for all three branches of our government…the Legislative and the Judicial no less than the Executive?

Well, that question came to mind recently in a discussion with my friend Stephen Axinn, the distinguished attorney who has counseled clients as to the anti-trust aspects of many of the most significant merger and acquisition transactions of the past quarter century. He very much regrets – perhaps “resents” is the better word – that anti-trust legislation is very much there on our national books, but that the Executive branch is simply not enforcing it.

My guest feels, I believe, that is just plain bad public policy … though the title of his key commentary on the subject a few years ago puts it much more gently…namely, “In Search of Congruence Between Legislative Purpose and Administrative Policy”.

Now, I don’t believe The Open Mind has even mentioned anti-trust policy since 1959, when my guest was Thurman Arnold, who Franklin Delano Roosevelt had appointed head of the Anti-Trust Division of the Justice Department in 1938. And this all takes us back quite a long ways, of course, but the question remains: can a responsible representative democracy keep laws on the books and yet cynically not enforce them…without, that is, doing itself enormous damage?

And I think that really is one of the questions that Steve Axinn has had on his mind. Am I reading you correctly, Steve Axinn?

AXINN: Oh, yes. In fact, I’ll go a step further and say that I think the Constitution itself is in danger right now. I use anti-trust as a proxy for a much larger problem in, in our society. And I’m not prepared to blame the current President or the Administration entirely for that.

I think the blame is … goes much deeper and goes further into the past. But our respect for the Constitution and for the process that the Constitution requires I think has been lost on the American people for a long time. And when I practice in my chosen field of anti-trust law and I see the Administrations and not just this Administration’s as I say, but previous Administrations as well, ignoring the very, very plain intent of Congress and the rather plain meanings ascribed to those words Congress uses by the Supreme Court.

And I see instead a, an Administration enforcement mechanism that has decided that it knows better, that it is relying on principles and theories and models which never were discussed in Congress and were not discussed either by the courts in our country until after these administrators and regulators put them forth. I, I think that the American people need to be alarmed about that sort of development.

But it is not confined to anti-trust. I find the same thing true with respect to communications policy, environmental policy. The policies of the Department of the Interior and we could go on. It’s not … this is not just about Bush and Guantanamo or what kind of torture is water boarding? This is about whether the Constitution is still alive and well in this country.

HEFFNER: Yes, but Steve, let me ask this … whether … you say, you’re not talking about the Bush Administration alone. You’re looking back much further. Then aren’t you looking at a nation that has said, “Okay, that’s the way it is and this is what we can accept.”

AXINN: I’m afraid I am, and that’s what’s disturbing me so much. I think that this has happened so gradually and slowly, but has been taken advantage of by politicians who seek more power than the Constitution would have given them, that when this rubber band snaps and the American people realize what they have lost, it maybe too late to recover it.

I don’t want to be an alarmist. We’re all going about our business, the country’s economy seems to be more or less, you know, perking along … but there is a very significant difference that history teaches is the approach the American people take today towards Presidential abuses of power, for example, and what would have been tolerated say forty or fifty years ago … if … and certainly longer than that.

When Roosevelt, in the early thirties, was facing the crisis of the depression, he was being advised by his brain trust that maybe he should assume more monarchial power. He chose not to do that.

Instead he went to Congress and said, “Let’s pack this court.” They said, “No.” And he lived with that. He went about it in an overt, not a covert way. But what’s been happening more recently is that laws that don’t fit the ideology of people in power are simply ignored. And not enforced and the American people are no longer focused on this the way they used to, I think.

And perhaps the blame … people can place the blame for that on the media. But I think the blame goes deeper than that. I, I really think our schools are failing us by not educating our children any more.

I … when I was a boy in the fourth grade, I was taught about the separation of powers in a class called “Civics” or Social Studies. I recently learned to my amazement that we don’t teach “Civics” or “Social Studies” to elementary school students any more.

Richard Dreyfuss, the actor, is now leading a campaign to restore Social Studies to our classrooms. No wonder Americans are growing up ignorant of the, the process the Constitution requires.

HEFFNER: He doesn’t want “Social Studies”, he wants “Civics”; it’s probably been the development of the social studies curricula … wide and broad as they are that have eliminated or led to the elimination of “Civics” itself.

But, Steve, hold on a minute. What you’re talking about, I think, clearly represents the truth, but doesn’t it also clearly represent what we, in our sovereign majesty have decided should be the way we perform?

AXINN: Well …

HEFFNER: “We the people of the United States” made that Constitution. And “we” perhaps in a somewhat different way are accepting changes in it that perhaps are just as legitimate.

AXINN: We are. We are. And there are no easy answers to this, Dick. But … there’s a book out recently by Eric Lane and Michael Oreskes, a book about the Constitution in which they argue that there is a Constitutional consensus, or a Constitutional conscience that people are brought up with, that they grow up with. And they learn to understand that the way our Constitution works, power is divided; the majority don’t get their way all the time and they don’t get their way as rapidly as they would like and when ideology changes, when we move on from laws like prohibition and so forth, there is a … there’s a legislative process … that takes place where the people are directly involved and represented and that process results in changes of legislation. The Executive is often frustrated by this because they, they think that Congress is broken, that it doesn’t do its job right. They know better. But the Constitution in its very origins was designed to prevent the President form becoming the king, the tyrant.

HEFFNER: Now, turn the hands of the clock back, turn it back to 1954 and the Supreme Court, without finding in the Constitution specific pegs upon which it can hang its hat, takes a more general insight into what is necessary for, let’s say, the general welfare clause to be recognized and gives us Brown vs Board of Education because it is more consistent with … presumably, with what Americans believe. Now, you and your approach to the Constitution and to what the President is doing now would really side with those who said, and there were many … that the court had no right … had no legitimate right to Brown vs Board of Education.

AXINN: I don’t agree.

HEFFNER: Tell me how.

AXINN: The Constitution makes it clear that the court determines what is and is not Constitutional. At least John Marshall made that clear in Marbury vs Madison. And, as a result, when times change, the Constitution, as a living document, needs to be interpreted and the branch of government that was given that responsibility under Article 3, was the Judiciary, and the Supreme Court specifically.

The President raises his right hand and takes an oath that the laws shall be faithfully executed. And that can only mean one thing. That if the law is Constitutional, and the laws that you and I are discussing … anti-trust, the federal communications laws, the environmental protection act, toxic control substances laws … those laws are Constitutional …the Supreme Court has spoken on those.

The Executive’s responsibility is a) to execute those laws, to enforce them. If he does not think those laws are in tune with the times anymore, he has the responsibility to initiate legislation in Congress to change the laws.

His law enforcement officials have the responsibility to go into courts where there are cases pending and argue as an amicus, as a friend of the court, for interpretations consistent with their philosophy.

But to ignore the laws that Congress has adopted and the Administrations before this President have signed into law and that the Supreme Court has determined are valid and Constitutional laws, it seems to me to be usurpation of power, the Constitution never intended to give the Executive Branch … this is not a question of “war” power, and it’s not a question of a “pardon” power and it’s not a question of un-Constitutional enactments.

What we’re talking about is a slippery slope where a President comes into office, elected because of a philosophical approach that the …that he has, that his Administration will carry and they just don’t like the laws that are on the books and they choose not to enforce them.

And I would have thought that certainly our Founders, even those that were not totally comfortable with the Constitution would unanimously condemn that kind of practice.

HEFFNER: Would you in the 21st century? Let’s hold off the question about the Founders and the 18th century … but in the 21st century … would you think it a … still all that appropriate to be so negative?

As negative as you are to the notion that a man is elected, in the instance of George Bush, “selected” by the Supreme Court, but let’s say in 2004… elected by a very respectable majority of the American people.

And that he brings in with him, as you just said, a philosophy and that that philosophy should be reflected without needing every four years or eight years or twelve years, or whatever, to go back to the Congress and say, “Let’s do away with this anti-trust approach. Let’s do away with that approach.”

Is it really so passing strange that an Administration, which expresses its philosophy, as you call it and has been duly selected, lets it’s administrative task reflect that philosophy?

AXINN: Well, I’m a lawyer and I’ve spent my life in the courts of this country and I believe that there was a native genius in the Constitutional system.

I … the Bush Administration was elected in 2004, with a solidly Republican majority in both Houses. And if the anti-trust laws, to take this example, are anathema to the Administration because they adopt a Chicago School approach and that’s inconsistent with what Congress intended with the Selleck/Kefauver Act or the Clayton Act or the Sherman Act or any of the other anti-trust statutes … they should have sought repeal.

That’s where the people, in the “We, the People” come into this process. They didn’t because they knew perfectly well that Congress would never repeal the anti-trust laws, the hue and cry would have been tremendous. And that just underscores the point. That this is not the people operating through their President.

When, when George Bush was elected the second time, he made a statement on the day after election day that said he had been given a good deal of political capital and now he intended to spend it.

And I could not object to that. That, that … the people spoke. Through the Electoral College. And they elected him. And so he should have gone to Congress and sought repeal of repugnant laws.

And I’m not …by the way … I, I don’t want to sound like an absolutist or a fanatic here. I wouldn’t be in favor of our government running out and enforcing the Blue Laws, if they existed on our books or some of the other strange things that find their way into legislation … either state or federal legislation.

There is a time when we can provide a dignified burial for certain statutes by common consensus. And certainly those … many people might argue that the inaction of Congress when the President adopts these approaches of non-enforcement is an indication that the people’s House and the Senate agree with the President, that his approach to the enforcement of these various statutes is appropriate.

HEFFNER: Not so?

AXINN: Ahh, certainly not. I don’t think it’s true. I, I … it is true, of course, we recently had a case this Spring called Leegin … L-e-e-g-i-n … where the Supreme Court overturned an almost 100 year old precedent that had said that resale price maintenance by a manufacturer, fixing the price at which a retailer could resell an article was no longer to be considered per se unlawful. Senator Cole and a coalition of others in the Senate have introduced legislation to overturn this, this Leegin decision.

Well, that’s, that’s fine. That’s the Constitutional process. But our court has held repeatedly, the Supreme Court has said over and over again, that Congressional inaction is not legislative history. It is a weakness.

It is a significant weakness of our system that when Congress does not police the President, the President can get away with practices which the people themselves did not want and Congress has previously expressed the will of the people in enacting this legislation. That is a weakness, that’s one of many weaknesses in our Congressional …

HEFFNER: But why do you say …

AXINN: … in our Constitutional process.

HEFFNER: And why do you say that the people themselves do not want …

AXINN: What I’ve said is that, that when Congress enacted a law amending the anti-trust laws to stiffen up merger enforcement, for example, as they’ve done repeatedly but most recently in 1950 and 1976 … that, that was an enactment by Congress signed by a President into law … that is the Constitutional process at work.

But when a President chooses not to enforce the statutes …Congress is not brought to attention to salute this. Congress does not notice this sort of thing in today’s political atmosphere. Non-enforcement goes unnoticed.

Those people who practice in this field that I practice in are aware of, of the inattention, or non-enforcement that goes on from time to time in different Administrations.

And sometimes we actually call attention to this …and environmental lawyers can be heard complaining the un-enforced, non-enforcement of environmental laws, for example. But that … Congress is a busy organization and they’ve got a lot of momentous things and a lot of very heavy political things on their agenda.

So it’s not surprising that these little nicks and cuts go unnoticed, but when you look over a decade or two decades and the trend becomes pronounced, I think that what we have is a weakening of the Legislative branch of government, a strengthening of the Executive branch. I’m not sure where the traditional branch is, but it doesn’t seem to be … a judiciary is unable to initiate anything. So, if it doesn’t come from the President and it doesn’t come from Congress … the courts cannot start on their own enforcement procedures. And I think … I think that one of the steps I would call for is, is certainly heightened surveillance, increased interest by Congress in these nuts and bolts, the laws that they previously passed, but I … I’m afraid it’s not happening.

HEFFNER: Steve, do you think it’s likely to happen? Which is the more important question.

AXINN: No. In a word.

HEFFNER: Carelessness? A machinery that doesn’t really function in the 21st century?

AXINN: Wow. Big question.

HEFFNER: MmmHmm.

AXINN: Ahhhmm. So many things are at work here. There’s a media that now … Al Gore just wrote a book on this subject as well. And he said that … how different things are now than in 1789, when the newspaper was really a two way street. And today the word “broadcast” means it’s a one-way street. Although the Internet may change that again. People’s ideas and things that call them to action are framed for them by the television editors and radio editors who produce the mass media. And they’re not focused on these … as I call them … nicks and cuts … that take place on a daily basis.

So unless there is some genuine grass roots uprising of people who want our Constitutional system restored with all its flaws … it is still, as Churchill pointed out … the best system on earth.

And I think what I would … what I hope to see in my lifetime, but I’m not so sure I will, is a rising up of American citizens, plain, simple, ordinary people to say, “We want our government back, we want the Congress to function more responsibly. We want the President to function less authoritarianly and we want the court to play referee between the two.”

HEFFNER: Ah. Don’t … don’t hold your breathe.

AXINN: I’m afraid I … I may not see it.

HEFFNER: Because you’ve already said, I think, quite appropriately that we’re not learning … we haven’t learned about the Constitution you knew …

AXINN: We’ve unlearned.

HEFFNER: We’ve unlearned.

AXINN: We’ve unlearned it. And that is, that is … that is something that we as lawyers can do something about. I would like to see lawyers here in the City of New York where our schools Chancellor is, is a well know, great anti-trust lawyer in his own right … just by coincidence. I would like to see our lawyers in New York volunteer to spend time teaching what I call “Civics” to school children in the City of New York. If it can’t be paid for out of the school budget than we ought to volunteer to do it. We need to … we need to make the Constitution a living document for the youth. People don’t know … we, we don’t know what we’ve got here until we lose.

When we lose the, the compromise principle, the give and take that is inherent in our system and we have somebody who we elect every four years, but who then decides to do what he knows is better … we’re going to miss this Constitution.

HEFFNER: May I point out to you … rather sadly .. that the last time the apparatus of government did not work … was in the American Civil War. It broke down and brother fought against brother. And that’s the point I want to thank you for joining me today on The Open Mind.

AXINN: It’s been my pleasure.

HEFFNER: Thanks, Steve Axinn. And thanks, too, to you in the audience. I hope you join us again next time. If you would like a transcript of today’s program, please send $4.00 in check or money order to The Open Mind, P. O. Box 7977, FDR Station, New York, New York 10150.

Meanwhile, as an old friend used to say, “Good night and good luck.”

N.B. Every effort has been made to ensure the accuracy of this transcript. It may not, however, be a verbatim copy of the program.