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Reagan and Rule of Law

November 10, 1985

Harvard Law Prof. Laurence Tribe, a political opponent of President Reagan, accuses our government of being a lawbreaker on a grand scale (Editorial Pages, Oct. 23), "We Are a Nation of Laws With a Scofflaw President." But let's see what "laws" Tribe is talking about, and how they are supposedly broken.

For one thing, there is the self-aggrandizing dictate of the World Court, the American judge dissenting, in favor of its own jurisdiction over a complaint by Nicaragua against our country. As it is well known, the World Court is dominated by judges from Iron Curtain and Third World countries that have never submitted to the court's so-called compulsory jurisdiction. The jurisdictional question is one about which lawyers disagree. Let us be thankful that we have a President who in case of doubt prefers our country's interests, even though some Harvard law professors prefer those of others.

Then, there is the government's disagreement with the opinions of some lower courts, some of them presided over by Jimmy Carter appointees who seem to be running a kind of government in exile. A national government has national concerns; lower courts of limited territorial jurisdiction are not competent to dictate to the country as a whole.

Tribe surely knows that in New Deal days lower courts all over the country were busy holding major reform legislation unconstitutional, but the Roosevelt Administration persevered, and the constitutionality of the New Deal was finally established. Thus, history teaches that a President who does his duty need not take the "law" laid down by inferior courts as the last word.

Contrary to what Tribe says, a government policy of selective "non-acquiescence" in some lower court decisions is not at all "novel." Long ago the Internal Revenue Service adopted such a policy with respect to some adverse lower court decisions; that is to say, the decision in a particular case holds good for that case, but it is not accepted as a precedent for others pending a definitive ruling by the Supreme Court. The policy of non-acquiescence has been justified because the IRS has a national responsibility that transcends the locality ruled by a particular lower court.

The inferior courts do not always make law everywhere or forever. In our system the Supreme Court is supreme. As an accredited scholar, Prof. Tribe knows that, but as a politician he refuses to admit it. It is a case of lending academic prestige to a bad cause.


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