Special Report

The Meese Effect

Obamacare rulings underline continuing influence of Reagan attorney general.

By 2.8.11

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The ripple that continues to spread across American society, law and politics based on an idea that is as simple as it is revolutionary.

Ronald Reagan wanted to restore the rule of constitutional law to the federal judiciary. It was a view shared by millions of Americans who had overwhelmingly responded to his 1980 presidential campaign in which the new president had carried 44 out of 50 states with a platform calling for the appointment of federal judges

whose judicial philosophy is characterized by the highest regard for protecting the rights of law-abiding citizens, and is consistent with the belief in the decentralization of the federal government and efforts to return decision making power to state and local elected officials.

Yet this was easier said then done. Many an American president has promised to do X, only to have the promise vanish into the policy weeds once elected, with no one inside his administration riding point on the issue, making certain the policy was implemented.

In the history of the American presidency only a handful of presidential aides and Cabinet members have made an influential, long-term impact.

One of that handful is Reagan's onetime presidential counsel and later attorney general, Edwin Meese III.

Just as most members of the House and Senate have come and gone from Washington over the centuries leaving no visible mark, so too is this true of most White House aides and cabinet members. 

The list of those whose work still plays an important role in current affairs is small. The list would include people like Lincoln's Secretary of State William Seward, who (after Lincoln's death) would dedicate himself to purchasing Alaska from the Russians -- Alaska now the 49th state of the union and, through the presence of everything from oil resources to its formidable ex-governor Sarah Palin -- very much a player in modern American life. Harry Truman's Secretary of State George Marshall's "Marshall Plan" secured a stabilized and free Western Europe after the devastation of World War II -- and provided a significant counterbalance to the Soviets as the Cold War began. John F. Kennedy's brother Robert is idealized today for his formidable role in the civil rights struggles of the 1960s, the equality issues of African-Americans, long frustrated by Kennedy's own party, were settled at last by RFK's direct intervention as both the head of the Justice Department and his brother's closest adviser. Whatever America's relationship to China, the fact that it was changed forever by the work of Nixon White House aide and later Secretary of State Henry Kissinger is on the books for keeps -- today's relationship with the Chinese flowing directly from Kissinger's work in the Nixon terms.

Likewise there have been aides whose long-term influence has been a clear negative, reflecting badly on both themselves and their presidential bosses. Andrew Jackson's Attorney General Roger Taney -- appointed by Jackson as Chief Justice of the United States -- is indelibly identified in history with the Dred Scott decision that tried to permanently write slavery into the Constitution. So too is JFK's Robert McNamara forever identified as the architect of the disastrous Vietnam War.

As the centennial celebration of Reagan's life refreshes, it is clear that Meese is in the first category with a Seward, Marshall or RFK, America today still being greatly influenced by the work of the 40th president's longtime aide and one-time attorney general -- his friend Ed Meese.

"THE MEESE EFFECT" RIPPLES throughout American society -- sometimes more tidal wave than ripple, washing over the legal precincts of American liberalism to devastating consequence.

One need only look at the recent considerable decision overturning ObamaCare by Florida's Federal Judge Roger Vinson to understand the Meese Effect at work.

Vinson is a "Reagan judge" -- appointed in 1983 when Meese was first exercising his influence in his role inside the White House as Counsellor to the President. At Reagan's direction Meese, not unlike Robert Kennedy to JFK, was more than just an advisor on one subject. But while his views on everything from foreign policy to national security to the economy were heard, as a former legal counsel to then-Governor Reagan and a former deputy district attorney of Alameda County in California, Meese in the White House and at Justice lasered in on the role of the federal judiciary. He understood intimately that whether the legal issue at hand was law enforcement, drugs, family policy, civil rights, or anything else that took on a legal hue, the common thread for many problems was the role of the federal judiciary. Wrote Meese: "The connection between these issues and the courts was not accidental."

Indeed.

So it was that Meese took the promises of the 1980 Republican platform and the specific instructions of Ronald Reagan to heart. "I wanted judges who would interpret the Constitution, not rewrite it," Reagan had instructed. It was Meese who saw to it, saying:

The conclusion that the President drew was obvious enough: if the problems we confronted (in the legal area) had come about because of judges, then something had to be done about the judges. This was of key importance, in his (Reagan's) view, not simply because of the individual issues involved, but because restoring the proper role of the judiciary was critical to our system of self-government. 

So how was this sentiment of Reagan's, shared by Meese, to be translated into the specifics of putting judges on the federal bench? Meese again:

In selecting judges, the administration established a rigorous process of interviews and background-checking. Both in the White House and at the Department of Justice I was intimately involved in the process and can attest that it was not only exhaustive, but that it adhered to the highest standards of professionalism and integrity…. In addition to the nominee's professional qualifications, the president instructed us to consider his judicial philosophy. He wanted to name judges who would look at the Constitution and statute law and expound their evident meaning, rather than using loopholes or convoluted logic to reach some preconceived conclusion.

Reagan had gone out of his way to say that he wanted judges on the bench who "understood, in the words of James Madison, 'if the sense in which the Constitution was accepted and ratified by the nation is not to guide the expounding of it, there can be no security for the faithful exercise of its powers.'"

Move ahead now to the recent decision by Judge Roger Vinson that ruled Obamacare was unconstitutional. What does Judge Vinson say in this opinion? Specifically, Vinson carefully cites the Commerce Clause of the Constitution, then says:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the act is wise or unwise legislation. It is about the constitutional role of the federal government…

Vinson's opinion accomplishes what Reagan instructed Meese to accomplish -- make sure Reagan appointees were grounded in the Constitution and the writings of the Founding Fathers. Wrote Vinson in a perfect illustration of the Meese Effect:

James Madison, the chief architect of our federalist system, once famously observed: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Vinson's opinion goes on with specific cites from The Federalist Papers, one of the trinity of historic documents produced by the United States at the dawn of the Republic, the other two being the Declaration of Independence and the Constitution. Vinson specifically focuses on Federalist No. 51, quoting this passage:

[T]he powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.

He moves on to discuss Federalist No. 45, referencing the Constitution along the way with the following cite:

The Federalist No. 45, at 311 (Madison); see also U.S. Const. art. I, § 1 (setting forth the specific legislative powers herein granted to Congress).

Next up is a direct reference to the Bill of Rights and the Tenth amendment.

And so on. Thoroughly grounding Vinson's resulting opinion that ObamaCare's effort to mandate the purchase of insurance is, on the face of it alone, unconstitutional. Said the Judge:

Regardless of how laudable its attempts may have been to accomplish these goals in passing the act, Congress must operate within the bounds established by the Constitution. Again, this case is not about whether the act is wise or unwise legislation. It is about the constitutional role of the federal government.

A purer example of the Meese Effect -- Meese's influence long after Ronald Reagan's presidency ended -- could not be had.

Unless, of course, you turn to a similar health care judicial decision made by Virginia Federal District Court Judge Henry Hudson, who issued the first ruling against ObamaCare in December of 2010, saying this:

Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market.… At its core, the dispute is not simply about regulating the business of insurance -- or crafting a scheme of universal health insurance coverage -- it's about an individual's right to choose to participate.

And who, exactly is Henry Hudson?

That's right. A former aide to Attorney General Meese, serving as chairman of the Attorney General's Commission on Pornography -- otherwise known in the day as "the Meese Commission." It was Hudson who unapologetically connected pornography to sex crimes, a controversial conclusion at the time that Hudson only regretted not making more strongly. Like clockwork, the Meese Effect shows in Hudson's health care ruling on ObamaCare, in which the ex-Meese aide zeroes in on the Constitution's protection of "an individual's right to choose to participate" in any "scheme of universal health insurance coverage." Meaning: the mandatory health care provision of ObamaCare is flatly unconstitutional.

But the Meese Effect isn't limited to health care decisions from the judiciary.

Turn to Judge Martin Feldman down in Louisiana. It was Feldman, like Vinson a Reagan judge put through the Meese selection process, who last June ordered the lifting of the deep-water drilling moratorium imposed by the Obama administration. His ruling, which specifically cited the government for acting in an "arbitrary and capricious" manner, verified a core concern of the Constitution as expressed by Madison: that the government must be enabled "to control itself." And controlling the Obama government from infringing on the legal rights of the oil companies to drill after the BP oil spill did just that -- provide a check on the power of the executive.

Once again, the Meese Effect at work.

While these three recent decisions by judges who sit on the bench specifically because of Ed Meese's work or advocate principles learned at his side are prime examples -- the Meese Effect is certainly seen in the more prominent, visible federal judges on the scene today. 

This would include Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. Three were young attorneys in the Reagan administration. Roberts served in the Reagan White House Counsel's office, Alito was a young deputy assistant attorney general to Meese himself, and Thomas served as both the Reagan Assistant Secretary of Education for Civil Rights as well as the Reagan-appointed head of the Equal Employment Opportunity Commission. Scalia was a Reagan appointee both to the U.S. Appeals Court and the Supreme Court. Kennedy was recommended by then-former Governor Reagan (doubtless with input from Meese) to President Gerald Ford as a nominee for the Ninth Circuit, with Reagan himself moving Kennedy to the Supreme Court in 1987.

In 1985, newly appointed as Attorney General of the United States, Meese made perhaps one of the most notable speeches ever made by either an attorney general or any other member of a presidential cabinet. Addressing the American Bar Association, Meese laid out what he termed a "jurisprudence of original intention" -- the philosophy clearly at work in Judge Vinson's decision to rule Obamacare unconstitutional. Said Attorney General Meese in his description of the Meese Effect:

In reviewing a term of the Court, it is important to take a moment and reflect upon the proper role of the Supreme Court in our constitutional system. The intended role of the judiciary generally and the Supreme Court in particular was to serve as the "bulwarks of a limited constitution." The judges, the Founders believed, would not fail to regard the Constitution as "fundamental law" and would "regulate their decisions" by it. As the "faithful guardians of the Constitution," the judges were expected to resist any political effort to depart from the literal provisions of the Constitution. The text of the document and the original intention of those who framed it would be the judicial standard in giving effect to the Constitution.

As the New York Times would later note in a rueful acknowledgment of Meese's influence back in 2005, Attorney General Meese wasn't just implementing Reagan policy at the Justice Department. He was actively reaching out to a future in which Reagan would be long gone from public office. Breakfast and lunchtime lectures on originalism became go-to events at the Meese Justice Department. Speeches on the topic were carefully prepared for delivery to conservative groups like the American Enterprise Institute and the Federalist Society. Among the attendees at such events was the young White House lawyer John Roberts. And so the Meese Effect has been -- and continues to be -- a major source of constitutional thinking not only with Reagan appointees to the federal bench but later appointees by other Republican presidents. It is, after all, the two presidents Bush who placed Justices Thomas, Roberts and Alito on the Supreme Court.

The Meese Effect can even be said to extend to talk radio and the best-seller lists -- where Meese's former Justice Department chief of staff and longtime friend Mark Levin holds sway as a national talk radio star and the author of the groundbreaking books Men in Black (for which Meese wrote the Afterword) and Liberty and Tyranny, where Meese is credited with "inspiration and support."

And last but certainly not least is Meese's role as a conservative Yoda to would-be conservative Luke Skywalkers in the world of conservative Jedi Knights. Ensconced at the Heritage Foundation as the Ronald Reagan Distinguished Fellow in Public Policy, he is the wise man, the guru, the always approachable and amiable man who, with a calm, focused view of the world derived from his time at Reagan's side is always available to strategize or advise when requested. Which is often.

President Obama has been making it known that he has been reading up on Ronald Reagan, a topic much touted by his allies in the media.

The real question of the Obama Era might be something else entirely.

Does Barack Obama have an Ed Meese at his side?

Easy answer. No.

There is only one Ed Meese. And like a William Seward or a George Marshall or Robert Kennedy or Henry Kissinger, he has used his time to steer towards an immutable, tangible change of course in American history. Certainly in the view of many Meese has changed the face of American law, politics, and society for both the better -- and for good.

You can call it The Meese Effect.

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.