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Does First Lady's Health Job Violate the Constitution? : POLITICAL FORECAST

March 21, 1993|Political Forecast interviews were conducted by Danica Kirka.

Can--and will--Hillary Rodham Clinton's role as head of the health-reform task force be constitutionally challenged? The Times asked seven professors of constitutional law. * Laurence H. Tribe,

Ralph S. Tyler professor of constitutional law, Harvard Law School The challenges are coming out of the woodwork, and that's all predictable, because people continue to misunderstand--and to resent--the role of a powerful woman in a situation like this. But there is absolutely no legal ground for sustaining such a challenge. The Constitution clearly protects the President's power to obtain confidential advice from whatever combination of people he chooses to consult.

To place restrictions on how the President can obtain advice from his closest life companion would not only invade the separation of powers but would violate the most fundamental rights that we all enjoy, whether we are in the White House or not. To require the President to pay his wife every time she advises him would clearly be unconstitutional.

*Charles Fried,

Professor of constitutional law, Harvard Law School, and former solicitor general in the Reagan Administration Presidents have, since the beginning of the Republic, chosen all kinds of people, without official jobs and statuses, to give them advice. The fact that this particular adviser happens to be someone the President is married to doesn't change that. The President can get advice from an astrologer, if he wants.

Making a constitutional case out of it is not the point. I see nothing different about giving Hillary Clinton this job than (naming) Peter Grace to chair the Grace commission or anything else like that.

Now, it is entirely possible to argue that the wisdom behind the (anti-nepotism) law extends to this case. That may be. But that's not a legal argument--that's an argument of prudence.

*Barbara Allen Babcock,

Ernest W. McFarland Professor of Law, Stanford I don't see any possible constitutional basis for challenging (her role.) He's appointed a lawyer whom he trusts. (The health-reform job) is not a constitutionally ordained office.

(Any constitutional challenge) would be an outrage. If he had appointed somebody from a Wall Street law firm--some back-room adviser--no one would have said anything about it. If Congress had established (the task force), then you have some issue. If he made her acting President, then you'd have a constitutional issue.

*Bruce Fein,

Associate deputy attorney general in the Reagan Administration:

I don't think it would be plausible to contend that it would be unconstitutional to use Hillary Clinton in whatever capacity the President desires, as long as there wasn't a statutory bar. For instance, President Woodrow Wilson used Col. (Edward Mandell) House almost as an alter ego in conducting much of his foreign policy. House was never a formal employee, just a good friend of the President.

An argument that would rise to a constitutional nature would turn on some evidence that Bill Clinton was not making final decisions--that he was just shoveling decisions to Hillary Clinton and that he was a rubber stamp. But that simply doesn't accord with the facts.

*Jack Greenberg,

Dean of Columbia College and professor of law

I don't see any constitutional question.

Ken Karst,

David G. Price and Dallas P. Price professor of law, UCLA It's preposterous.

If the President wanted to call in the director of a health-maintenance organization or of an insurance company or the head of a union who is interested in benefits for the members and make that person the chair of a task force, I suppose no one would raise any question. The fact that the President is married to the consultant doesn't disqualify Hillary Clinton from being the consultant.

I don't even see any conflict-of-interest ground, let alone a constitutional ground. Any president who does not listen to his wife would be, in my mind, suspect.

*Peter H. Schuck,

Simeon E. Baldwin professor of law, Yale It strikes me that the notion that she is violating the Constitution by running this task force seems ridiculous. There's no constitutional right that I think she can even plausibly be accused of having violated. I can't imagine what it would be. In fact, one might argue the opposite. There is this important constitutional value in the President having access to the confidential advice of his closest advisers. This is embodied in the constitutional right of executive privilege, which has been upheld by the courts as constitutionally valid.

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