The Civiletti Option

October 11, 1990

Maryland Congressman Tom McMillen, in casual conversation

with Justice Sandra Day O'Connor, mentioned the other day that the federal budget imbroglio might wind up before the Supreme Court. That does not mean the high tribunal would settle matters, because the court hates to be caught in the middle of power struggles between the executive and legislative branches. But if the government should shut down again, and for any length of time, the issue could be joined.

It is, moreover, an issue with distinctly Maryland origins. In 1980, vTC the late Gladys Noon Spellman, representing Maryland's Fifth congressional district, sought to protect the jobs of Federal Trade Commission workers after their agency's appropriations were shut off. President Carter's attorney general, Benjamin R. Civiletti of Maryland, then issued a tough opinion stating that federal agencies in such a predicament could spend funds only for the purpose of shutting down or for other activities "authorized by law."

This interpretation of the 1870 Antideficiency Act ran into complications five months later when the kind of tussle we are seeing today led to the first government-wide lapse in funding. White House aides saw a need for wider latitude to avoid government breakdown and chaos.

The result was another Civiletti opinion asserting a presidential authority to maintain essential government operations "involving the safety of human life or the protection of property." The attorney general, now managing partner of the Baltimore law firm of Venable, Baetjer and Howard, said "the president performs not only functions that are authorized by statute but functions authorized by the Constitution" -- essential functions, he added, to "make the government workable."

Congressional enthusiasts ever on the watch for executive power grabs started grumbling immediately. When President Reagan cited the Civiletti interpretation on the three occasions he forced a government-wide shutdown, complaints crescendoed. Now that President Bush's associates have put on their own spin, contending it gives the executive a de facto line-item veto power to pick and choose what federal activities should be funded, the stage is set. Another stalemate like that seen over the Columbus Day weekend could precipitate the kind of Supreme Court challenge Mr. McMillen mentioned to Justice O'Connor.

The Constitution did not envisage government paralysis. We would hope this dispute ends in the spirit of a Supreme Court opinion cited by Mr. Civiletti: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity."

Let Congress and the White House take notice.

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