Congress should “reign in” the powers of federal courts and regulatory agencies by vetoing regulations, overruling Supreme Court opinions, withdrawing court jurisdiction, and recalling recalcitrant judges, according to authors of a book advocating judicial reform published recently by a conservative foundation.
The Free Congress Research and Education Foundation, an offshoot of the “new right” political fund-raising organization, the Committee for the Survival of a Free Congress, recommends such “reforms” as a means of curing what the authors call “judicial activism"--the encroachment by federal judges and rule-making agencies upon the legal powers of Congress.
Contributors to the essays in A Blueprint for Judicial Reform claim that actions by courts and rule-making agencies that resulted in affirmative action, school busing, and free legal services for the poor; that legalized abortion; and that outlawed prayer in public schools were more properly the province of the legislative branch.
Conservative Perspective
The authors--lawyers, politicians, and scholars--look at the issue of judicial activism from an admittedly conservative perspective. Economist George Gilder writes in the introduction of the book that “in place of the values of family, faith, and freedom ... many federal judges now support a movement toward humanism and social change, designed to transform our schools, homes, libraries, media, and culture into vessels of socialism, sexual liberation, atheism, and amorality.”
The publication is one of many critiques of the judiciary system issued recently by conservatives. But because three of the contributors to this publication are Republican senators--Orrin G. Hatch of Utah, John P. East of North Carolina, and Alan K. Simpson of Wyoming--observers expect Congressional debate on the issue of judicial activism.
Senator East already has introduced a bill to withdraw jurisdiction over school busing cases from the federal courts. And Senator Hatch is sponsoring measures to limit the scope of regulations governing Title IX of the Education Amendments of 1972 and to prohibit the use of affirmative-action quotas in hiring.
The publication was criticized by David Landau, a spokesman for the American Civil Liberties Union. He called the book’s suggestions “an attack on the federal judiciary,” and claimed the authors were ideologically motivated.
In one of the book’s essays, William A. Stanmeyer of the Lincoln Center for Legal Studies in Arlington, Va., writes that two “examples of abuse of judicial review power” are school prayer and busing.
He argues that by outlawing prayer in public schools on the one hand, and by forbidding private schools from receiving public funds--even for “nonideological” instruction--on the other, the U.S. Supreme Court may have de facto established “secular humanism as the country’s ‘official religion.”’
He says the 1954 Brown decision by the Court, which struck down separate-but-equal educational systems, “was an absolutely correct decision.” But he argues that the Court, by upholding a lower-court busing order in 1971, was itself guilty of assigning students to schools on the basis of race.
“Though the Constitution, we were told, required legislatures and school administrators to be ‘color blind’ in 1954, it required them to be ‘color-conscious’ two decades later,” he writes.
To prevent the Supreme Court from making such rulings in the future, Mr. Stanmeyer recommends passage of a constitutional amendment that would permit the Congress to overrule a Supreme Court or federal court ruling, without permitting the President to veto the action of Congress.
Judges Targeted
Judges as individuals are also the authors’ targets. Mr. Gilder complains that “nearly all” of the 152 federal judges appointed by President Jimmy Carter after 1978 “were young, liberal, and supporters of judicial activism as an instrument of social change.” They have “probably established activist domination of the federal judiciary for decades to come,” he writes.
To counterract that domination, writes Michael E. Hammond, general counsel to the Senate Republican Steering Committee, Congress should have the power to: examine court opinions; call judges before Congressional committees to explain their actions; withdraw jurisdiction over “areas in which the courts have clearly abused the Constitution"; and impeach justices.
Likewise, the 44 federal regulatory agencies are criticized by Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution.
Such agencies combine “legislative, judicial, and executive functions, in defiance of the separation-of-powers principle, and are constrained ... only by sporadic reversal of its decisions by appellate courts or even more rare Congressional legislation,” he writes.
“The importance of these regulatory commissions is out of all proportion to their public visibility or political accountability,” chiefly because they issue 10,000 new regulations each year, he says. These agencies “create more law than Congress,” according to Mr. Sowell.
Raymond M. Momboisse, a conservative public-interest attorney who was recently appointed by President Reagan to the board of the federal Legal Services Corporation--which provides free legal services to the poor--argues that some agency rule-making resulted from the unwillingness of members of Congress to deal with controversial issues.
‘Precise Standards’
“A major step in regulatory reform would be for Congress itself once more to face the difficult responsibility of finding answers to problems--and laying down precise standards within which agencies must function,” he says.
Mr. Momboisse suggests that the Congress establish a government agency to review all regulations and that the Congress itself also review regulations, making use of existing veto powers.
Mr. Momboisse also suggests that agencies subject all regulations to a cost-benefit analysis prior to their implementation, and he advises that agencies periodically publish “an agenda of proposed rules” in the Federal Register.
Another contributor argues that the regulatory review step should be taken at the state level.
“Justification [of regulations] must be made in a state court or state reviewing agency ... located where the principal regulatory economic impact is to occur,” writes William F. Harvey, a law professor at Indiana University.
“It is not just the existence of federal regulatory agencies ... or their huge quantities of regulations, rules, findings, investigations, and the like ...” he writes. “It is also the implementation of those agencies’ powers by the federal appellate judiciary in particular, either by enforcement of or the refusal to restrain the regulatory agencies, which causes a moribund economic consequence.”
