Courting Trouble

Congress would rather complain about life-tenured federal judges than make recalcitrant bureaucrats enforce the law.

Michael W. Lynch from the August/September 1997 issue

(Page 2 of 2)

In the same Wall Street Journal article that helped to expose Cantu, Terrance Pell of the Center for Individual Rights wrote of another case in Texas that indicates the Clinton administration is still following its policy of nonacquiescence.

Since 1978, Houston's Metropolitan Transit Authority of Harris Country (METRO) has maintained a preference program for minority contractors. The program set a target that 21 percent of the dollar amount of any construction project must go to firms owned by women or select minorities. The 21 percent goal was written into the terms of the contracts, and bids that didn't meet the goal could be summarily rejected. In 1993, the Houston Contractors Association, which represents road construction firms, challenged the target as unconstitutional. In April 1996, a federal district judge issued a temporary injunction halting the program.

This injunction didn't sit well with the Department of Transportation's Federal Transit Administration, which funds a portion of METRO's construction budget. FTA claims its regulations require METRO to maintain minority preferences and threatened to cut all funding unless METRO reinstated the program. Caught between two conflicting federal masters, METRO created a new program that granted preferences to small businesses, regardless of the race or ethnicity of the owners. This satisfied the judge, but not the FTA, which insists on racial preferences. To date, the FTA has withheld $326 million in federal funding for proposed METRO construction projects. So METRO finds itself in a dilemma: One branch of the federal government says it can't use race as a factor in awarding contracts. Another branch won't give METRO any money to complete the contracts unless it uses race in awarding them.

"The left hand of big government doesn't know what the right hand is doing," says Tony Rudy, press secretary to House Majority Whip Tom DeLay, who represents part of Houston. Rudy is right. But DeLay doesn't seem eager to elevate the issue, preferring instead to work for a quiet fix, possibly by putting an amendment on a transportation funding bill.

This would be a perfect opportunity to hold hearings to: a) put the ridiculous and overbearing nature of the federal government on stage; b) reaffirm the fundamental principle that all citizens should be treated equally; and c) highlight the Clinton administration's overreaching interpretation of its powers under the Constitution. After all, if a federal judge in California enjoining a voter-approved initiative warrants hearings, so too should an executive branch claiming that it isn't bound by federal court decisions with which it disagrees.

And then there's the legislative option. The Republicans do control Congress, and if they feel that Henderson has egregiously misinterpreted the 14th Amendment, they could pass a law emphasizing that the guarantee of equal protection of the law means that federal law should treat each individual equally, regardless of race or class. In the 104th Congress, as Californians were having a healthy debate over the California Civil Rights Initiative, bills to rid the federal government of preferences sponsored by Rep. Charles Canady (R-Fla.) and then-Sen. Bob Dole (R-Kans.) enjoyed on-and-off support from the congressional leadership.

Earlier this year, House Speaker Newt Gingrich (R-Ga.) took center stage at a Washington gala dinner honoring Ward Connerly, chairman of the CCRI campaign, and professed his support for the winning side in that battle. Although he spoke boldly of the evils of "affirmative racism" at this event, Gingrich later signaled he wouldn't support a federal law to end racial preferences. After a meeting in late May with Connerly, however, Gingrich backed away, indicating that he may indeed support such legislation. Canady plans to reintroduce his bill this year, but without the unambiguous support of leadership, it faces long odds.

There are signs that the Republicans are attempting to move their civil rights agenda forward in Congress. In May, the House Judiciary Committee's Subcommittee on the Constitution held an oversight hearing at which members grilled Isabelle Katz Pinzler, acting assistant attorney
general for civil rights, about the Justice Department's position on the meaning of the Equal Protection Clause and the proposed regulations in response to Adarand. The subcommittee plans to hold additional hearings later this summer. On the Senate side, the Judiciary Committee is planning civil rights oversight hearings in June, and at least one committee member has written Attorney General Janet Reno, asking her to clarify the administration's position on whether government agencies are bound by federal court rulings with which they disagree.

Cornell legal scholar Jeremy Rabkin notes that politicians often like to have it both ways with the courts. "The courts are a two-sided shield," says Rabkin. "In the 1960s, the people could say that the courts made us do it, even though it was the Justice Department pushing it. Now we have Republicans in Congress saying the courts are doing it, and it becomes a way for them to excuse their passivity."

Rabkin's comments point to why the Republicans focus on the judiciary is troubling. This focus could complement a strong legislative agenda aimed at relimiting government one step at a time. But it will more likely become the second sibling in the twin excuses for the failure to move forward on such an agenda, the first being the difficulty in passing bills over Clinton's threatened vetoes.

The problem of our polity lies not primarily in the courts but with politicians. Smaller, less intrusive government is not going to come about by indiscriminately beating up on federal judges, even if more than a few deserve a good knock on the noggin. It will require congressional leadership to articulate the case for relimiting government by offering examples of how a government unrestrained by the rule of law abuses the very citizenry from which it derives its powers. Some of these examples may come from judicial overreach, but they must be tied to a broader agenda.

Speaking at the Cato Institute in May, Weekly Standard Editor and Publisher William Kristol noted that congressional Republicans seemed to be seeking a content-free politics for the next two years in the hope of holding their congressional majorities in 1998. Kristol, who was speaking on the budget deal, warned that this dream would prove elusive. He is right. Politics will be content-driven. The choice facing congressional leaders is whose content will drive politics--the agenda of those seeking to limit government or of those seeking to further its expansion. At present, for the lack of an alternative, it seems the latter is prevailing.

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