Ronald Reagan and the Rehnquist Court on Congressional Power: Presidential Influences on Constitutional Change

Abstract:     
This article was published as part of a symposium on "Congressional Power in the Shadow of the Rehnquist Court." It reviews recent Rehnquist Court decisions that limit congressional power - including through limits on Congress's section 5 and commerce powers as well as state sovereign immunity and "anti-commandeering" doctrine - and traces them to a concerted effort on the part of ideological conservatives to change the direction of constitutional law. The article focuses on a little-known series of lengthy reports issued by the U.S. Department of Justice, under the direction of President Reagan's Attorney General Ed Meese, that developed a detailed and comprehensive constitutional vision on all the great issues of the day - the right to privacy, affirmative action, religion, and many other issues in addition to congressional power and federalism - a vision, moreover, often at odds with Supreme Court precedent. The reports also addressed strategies for implementing the Reagan/Meese vision, including a call for the appointment of ideologically sympathetic judges. The article considers the Reagan/Meese effort as an example of the central role the political branches, and more generally non-judicial forces, play in promoting constitutional change.

Keywords: Congressional power, constitutional interpretation, constitutional change, Ronald Reagan, Rehnquist Court, judicial selection, judicial appointments, non-judicial constitutional interpretation, federalism

JEL Classifications: K10, K19, K30, K39

Accepted Paper Series