Deference of Agency Heads To Constitutional Lawyers

May 2nd, 2012

What is the duty of the Executive Branch, from the President to Agency Heads, to consider the constitutionality of their actions? This issue, most recently inspired by Jeff Toobin’s piece on Judge Kavanaugh, seems to be at the forefront of many legal issues today.

Recently, Representative Gowdy and Secretary Sebelius had this colloquy about the constitutionality of the contraceptive mandate:

GOWDY: When you say you balance things, can you understand why I might be seeking a constitutional balancing instead of any other kind?

SEBELIUS: I do, sir, and I defer to our lawyers to give me good advice on the Constitution. I do not pretend to be a constitutional lawyer.

GOWDY: Is there a legal memo that you relied on?

SEBELIUS: I relied on discussions.

GOWDY: At least when Attorney General Holder made his recess appointments, there was a legal memo that he relied on. Is there one you can share with us?

SEBELIUS: Attorney General Holder clearly runs the Justice Department and lives in a world of legal memos.

I’m not sure how to read this.

On the one hand, Sebelius is just answering some question that she probably does not know the answer to. I doubt she was prepared to talk about religion clause jurisprudence.

But on the other hand, it seems the head of a major executive branch agency has shirked all responsibility for determining the constitutionality of a major law to–gasp–a bunch of lawyers. Granted she is not a lawyer. However, usually, lawyers tend to advise clients who have to make decisions, whether in business or government or whatever. I’m sure her lawyers explained the issue to her satisfaction so she understands it. If she understands the issue, I would hope she makes an independent judgment, informed by the lawyers of course, whether her course of action. But–this may be a strained reading of her remarks, but bear with me for argument’s sake–if she simply just defers and accepts her lawyer’s say-so that a law is constitutional, then I have a problem.

Executive branch officials rubber stamping legal opinions by lawyers just rubs (water boards?) me the wrong way, if YOO get my drift.

Even if the constitutional argument is pointless, I would hope that the duly-confirmed executive branch official, and not some wonky lawyer, is the person making the decision.

Now the counter-argument, of course, is that it would be a waste of time for government lawyers to prepare lengthy memos and spend time briefing the Secretary. Sure. And I’m not sure at what point something like this would rise to the level of the Secretary’s attention. Though, maybe, being grilled by the House–and lawsuits pending in the courts–would be a sign. And really, in light of all of the legal challenges to her agency of late, I hope she would brush up on some doctrine.