Attorney General Meese is a living legend. At age 92, he has contributed more to the law than any other American who has not served on the Supreme Court. I have only scratched the surface of his amazing career in this article 2022 Mies Lecture. But if you ever meet Mr. Mies (please don’t call him General!), you will find a humble and honest man. Mies is not one to boast of his vast accomplishments. Fortunately, two of Mies’ top aides in the Reagan administration put pen to paper and recorded the attorney general’s accomplishments for posterity.
Steve Calabresi and Gary Lawson have published a new book titled: The Mies Revolution: Creating a Constitutional Moment. This book tells the story of how Mies revolutionized the Justice Department’s constitution and prepared the foundation for the court’s current originalist majority. I highly recommend this wonderful book released today. (I was able to get a signed copy at the Federalist Society convention last week!)
As well as being a thorough treatment of Mies’ heritage, this book contains countless fun tidbits that I enjoyed. One of them concerned the following incident. Hodel vs. Irving (1986). This book describes how Attorney General Charles Fried had to fight the “deep state” within the SG’s office. The incident raised questions about how far-reaching the government’s power grab is. Gary Lawson, who worked at OLC, supported a narrower interpretation of control. But career lawyers at the SG firm used far more generous language. Plenary session.
Lawson was surprised to see an argument in an initial brief draft of Hodel v. Irving, a Native American land case, that appeared to be written by career SG lawyers Ed Needler and Larry Wallace, “Furthermore, All sovereigns have the power to regulate the manner and conditions under which property passes on death, as well as to prescribe who can and cannot receive it. ” (emphasis added). Much of this statement was uncontroversial. No one doubts that the government can regulate the passage of property through wills. There have long been laws that limit to some extent the power to write a valid will, completely limit the ability to disinherit certain family members, and so on. Key to the discussion of the draft briefs was the word ‘plenary’.
However, political appointees at the Justice Department objected to the term “plenum.”
Lawson was surprised to see an argument in an initial brief draft of Hodel v. Irving, a Native American land case, that appeared to be written by career SG lawyers Ed Needler and Larry Wallace, “Furthermore, All sovereigns have the power to regulate the manner and conditions under which property passes on death, as well as to prescribe who can and cannot receive it. ” (emphasis added). Much of this statement was uncontroversial. No one doubts that the government can regulate the passage of property through wills. There have long been laws that to some extent limit the ability to write a valid will, completely restrict certain family members from disinheriting their inheritance, etc. Key to the discussion of the draft preparations was the word ‘plenary’.
So what did Freed do? He took out a marker and edited out the word “Plenary” from the brief.
Recall that Fried said there may be little or no time to receive and revise briefs from staff. This time, he received printed copies (dozens of them) of briefs ready to be filed with the Supreme Court. The brief described the government’s “all-power” powers over will probate, including the power to completely abolish the ability to inherit people’s property. In that case, there was no way to modify the summary. They were the final printed format. Charles Freed found a way. The night before (literally the night before) he filed his brief with the Supreme Court, he took a marker and personally blacked out the word “Plenary” by hand on every printed copy of the brief.. In today’s world of digitalization, this remarkable event is at risk of extinction. However, if you can find a hard copy of that preparation (there are nine repositories of printed SG preparations nationwide) or a PDF that exactly reproduces the original document, then every copy will be hand-painted. You will see that it has been deleted. This was Charles Freed’s masterpiece, and the career staff of the SG Secretariat did the same.
When I read this passage, I immediately emailed a brilliant librarian at South Texas College of Law to find a synopsis. Fortunately, they have microfilm copies of Supreme Court briefs from the 1980s. and they found hodel Short reply:
Your edits appear on page 5 of the overview.
And the marker bleed through to page 6.
When you open the overview for Westlaw, you will see two question marks over the edits.
The story gets even better. Judge O’Connor asked Ed Needler about this issue during oral argument:
The story has a coda. Even after Fried’s heroic efforts to limit the damage, when he held the marked section of the printed brief up to the light, the word “Plenary” could be faintly seen beneath it. During oral argument in Hodel v. Irving, when Ed Kneedler presented the government’s case, Judge O’Connor asked, “Mr. Kneedler, are there any limits in your opinion to what the government can do or change regarding the attribution of property? ” he asked. Do you think the Indian government has full authority to enact any regulations? (Lawson was in the audience during the argument and had to hold back a laugh when Judge O’Connor, in a change from his usual polite and soothing tone, sharply emphasized the word “plenary.”) Needler said: , answered without question as he had been commanded. I say, “No, our proposal doesn’t go that far.” But he added:[t]The court described the legislature’s power over the hereditary inheritance of property in very broad terms, suggesting that the right to transfer property and to receive it by descent or testament is a creation of statute and not a natural right, but a privilege. did. “It can be conditional, it can be abolished, but the court has never faced a situation where it has had to deal with that, and it doesn’t exist here.” Of course, a simple “no” would suffice; Niedler said: Judge O’Connor argued that at least the government could abolish the transfer of property on death. “So, are you taking the position that it can be abolished?” Judge Needler replied. I hereby submit, no,” and tried to explain the limited scope of the law that is actually at issue in this case.
A great story from a great book.
