First lady's role provokes constitutional questions

March 13, 1994|By Carl M. Cannon | Carl M. Cannon,Washington Bureau of The Sun

WASHINGTON -- It is unlikely that the Constitution's framers could have envisioned either Hillary Rodham Clinton or the Whitewater affair, women not having yet been admitted to the bar and the Ozark mountains still being owned, technically, at least, by France.

But they certainly did foresee one of the significant constitutional issues raised by the first lady's central role, not only in Whitewater, but in President Clinton's government: the matter of a co-presidency.

Is it advisable for a president to delegate such authority to his wife? And if so, are there limits implied by the Constitution?

"The problem began the day the president gave his wife responsibility for the No. 1 issue of his presidency -- health care," said Harvey Mansfield, professor of government at Harvard University. "At that time, I wondered, 'But can he fire her?' "

One liberal female law professor who asked not to be quoted by name said that Mrs. Clinton's role is clearly not unconstitutional but that the way she wields power is setting a disquieting precedent.

"I'm a big fan of Hillary Clinton," this professor said. "Until Whitewater, I didn't see the dangers . . . but now I do. No. 1, she's not accountable. No. 2, they're not separable: He can't fire her -- and no one who works for him can even suggest it."

Nonsense, replies Ann Lewis, a Democratic Party activist and defender of the Clintons. "The Constitution is clear: There is one president -- and he's accountable, and if the voters don't like health care he will be held to account in the 1996 election," Ms. Lewis said.

"They keep changing their minds on this idea of whether Hillary is a public official," countered Nelson Polsby, a University of California political scientist. "The constitutional issue is whether she's accountable -- and to whom."

Questions about sharing power in the executive were precisely the kind of questions that the Founding Fathers wrestled with as they met in Philadelphia in the sweltering summer of 1787 to draft the Constitution and create a brand-new idea -- the presidency.

Executive branch needed

Old habits died hard. John Jay spoke for many of the colonists when he asked George Washington -- not in jest -- "Shall we have a king?" While no one at Philadelphia seriously argued for a monarchy, the near-chaos that reigned under the Articles of Confederation taught them all that they needed an executive branch.

"That conclusion was reached through experience, not doctrine," said William Miller, a presidential scholar at the University of Virginia.

Thomas Jefferson had proposed an executive "council," and the so-called Virginia Plan, calling for a plural executive branch, was introduced. The counterproposal for a "unitary" executive came from Virginian James Madison and a Pennsylvanian named James Wilson. But its most eloquent advocate, and the man who is considered the architect of the modern presidency, was Alexander Hamilton of New York.

In the "Federalist Papers," Hamilton argued for the absolute need for a "vigorous" and "energetic" executive. This was only possible, he added, if power was invested in a single person.

"One of the weightiest objections to a plurality in the Executive," he wrote on March 18, 1788, "is that it tends to conceal faults and destroy responsibility."

"I can tell you that Alexander Hamilton was not talking about the president's wife when he wrote about the pitfalls of the multiple presidency," said Barbara Allen Babcock, professor of law at Stanford University.

Ms. Babcock sees no constitutional problem with Mrs. Clinton's role, saying: "I think that historically, first ladies wielded power under the table.She's doing it openly."

Question of accountability

It's true that neither Hamilton -- nor the other framers who eventually adopted his vision -- were talking about a powerful first lady.

On the other hand, it seems to many scholars that the rationale for granting presidential power to one person seems to apply directly to Mrs. Clinton and the current situation. That reason is accountability.

"It often becomes impossible, amid mutual accusations, to determine on whom the blame or the punishment of a pernicious measure, or series of pernicious measures, ought really to fall," Hamilton wrote. "It is shifted from one to another with so much dexterity and under such plausible appearances, that the public opinion is left in suspense about the real author."

Similar doubts are some of the ingredients in the public relations disaster that constitutes the White House handling of Whitewater.

Who had possession of the missing Whitewater Development Corp. records -- Mr. Clinton or Mrs. Clinton? Or neither?

Who hired White House counsel Bernard W. Nussbaum -- Mr. Clinton or Mr. Nussbaum's former protege, Mrs. Clinton?

Whom did the now-deceased deputy White House counsel Vincent W. Foster Jr. report to, Mr. Clinton or Mrs. Clinton, his mentor at the Rose Law Firm in Little Rock?

Protest against Mrs. Clinton

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