White House witchcraft

THERE MAY BE an ominous link between White House efforts to reinterpret the Civil Rights Act of 1991 and President Bush's veto of the so-called "gag rule" bill for doctors practicing in federally financed clinics. Congress first authorized such clinics in 1970, though it specifically banned use of federal funds to perform abortions. Nearly two decades later, in 1988, the Reagan adminTomWickeristration issued a new interpretation of the 1970 legislation, ruling that doctors in the clinics could not even discuss abortion with a pregnant woman or refer her to a doctor who could.

This novel regulation duly reached the Supreme Court, where Chief Justice Rehnquist wrote an opinion upholding it (by a 5-4 majority), on grounds that the executive branch was entitled to interpret the legislation's meaning. Congress hastened to pass a bill to overturn the court ruling and the gag regulation itself. Bush vetoed it, and the House failed by 12 votes to override.


Thus, the 18 years during which no one pretended that Congress had intended to restrict the free speech rights or professional conduct of doctors, and the overwhelming majorities that passed the subsequent bill that Bush vetoed, meant little. He and the Bush-Reagan Supreme Court majority reversed Congress and imposed their own view of the meaning of the 1970 legislation.

Late last month, only bipartisan outrage in Congress and the discomfiture of some Republicans stopped a White House effort to make the same kind of end run around the new Civil Rights Act. The White House counsel, Boyden Gray -- who hardly could have acted, as claimed, without Bush's knowledge -- issued an interpretation of the legislation that would have stopped all federal affirmative action programs. This would have meant the violent overthrow of the meaning of the act, as attested even by numerous Republicans.


If the president didn't know what Gray was up to, he was remiss to the point of dereliction. If he did, the move backfired. Congressional resistance and concern among Republican strategists forced the White House to retreat, at least for now.

But at some point, with no such uproar, the White House may yet be able to issue new enforcement regulations -- just as the Reagan administration did in 1988 -- that would reverse what the majority that passed the Civil Rights Act thought it was doing. When that new interpretation goes before the Supreme Court, the Reagan-Bush majority could uphold it on the grounds Rehnquist already has cited -- due deference to the executive branch's right to say what it considers to be the meaning of a statute.

Congress would have the right then to pass new legislation restoring the original act. That's just what it did this year, in the case of the gag rule. But if Bush then wielded his veto, as he did in the earlier instance, Congress would have to muster a two-thirds vote in both houses to override. If it failed, the White House interpretation of the Civil Rights Act would stand -- as the family-planning clinic gag rule stands.

Something similar may be going on in the White House Council on Competitiveness, headed by Vice President Quayle. Acting under executive privilege, the council is empowered to issue enforcement regulations that can thwart attempts by Congress to regulate business practices, etc.

The new Clean Air Act, for which Bush claims great credit, provides a good example. The act requires plants and factories to get permits specifying their allowed emissions of pollutants. A ruling by Quayle's council makes it easy for these pollution sources to get increases in allowed emissions.

It's true that legislative intent is not always clear, and that both sides of a congressional dispute often attempt to influence "legislative history" to their own advantage. Justice Antonin Scalia claims to be philosophically convinced that such history is not a sufficiently reliable guide to congressional intent.

But the family-planning clinic gag rule -- aside from its restrictions on speech, distortion of medical ethics and deprivation of poor women's rights -- reversed the meaning of a statute that had been undisputed for 18 years. The temporarily thwarted attempt to stand the Civil Rights Act on its head appears to have been more of the same political black magic. Witchcraft might be a better word.