The Rule of Law in the Wake of Clinton edited by Roger Pilon

The President's Central Function Is to Maintain Rule of Law, Not to Govern the Nation

Cato Institute • 2000 • 240 pages • $9.95 paperback

The oath of office obligates the president of the United States to preserve and defend the Constitution, and thus the central function of his job amounts to maintaining the rule of law. The president is not supposed to govern the nation, but the temptation to misuse the power of the office to do so has proven to be one that most occupants of the White House have been unable to resist. The history of presidential usurpation of powers intended for other branches of government, and of the seizure of powers not intended for any branch, is a long and sorry one.

The 42nd president, William Jefferson Clinton, will be remembered for many dishonorable things, but foremost among them should be the attack on the rule of law that took place during his administration. Unwilling to abide by the constitutional limits on executive power, this latter-day Roman emperor trampled the rule of law incessantly. Clinton’s “We must win it, then” attitude, expressed during the Lewinsky affair but much in evidence throughout his presidency, boiled down to a relentless determination to have his way no matter what the law said.

Last July the Cato Institute held a conference to discuss the Clinton administration’s lawlessness. Fifteen scholars presented papers, and this book now puts their work before the public. Edited by Roger Pilon, Cato’s vice president for legal affairs, they demonstrate that, across a wide front, Clinton and his minions overran the rule of law. Our defenses against the arbitrary exercise of executive power, when put to the test, proved no match for a president who would not allow mere words on paper to stand between him and the accomplishment of his objectives.

What is so important about the rule of law anyway? Law professor Lillian BeVier explains in the book’s initial essay that the rule of law secures order and liberty for all by ensuring “equal impersonal treatment according to known rules and without regard to status, rank, or political persuasion.” Take away the rule of law and we are all at risk of loss of life, liberty, and property to grasping government officials.

ACLU President Nadine Strossen makes it clear in her essay that the Clinton record should be just as frightening to “liberals” as to libertarians and conservatives. She observes that privacy and speech rights have been pounded under Clinton, writing that, “The overarching theme that captures Clinton’s overall civil liberties transgressions, including in the free speech and privacy areas, is that they seem animated not by ignorance of constitutional principles, but rather by a brazen disregard for those principles.” Moreover, she worries that Clinton’s attacks will have long-lasting repercussions. He has, after all, shown future presidents how much they can get away with.

Senator Fred Thompson recounts Clinton’s use of the Justice Department as a shield for its numerous legal transgressions. Janet Reno was not his first choice for attorney general, but it is hard to imagine that anyone else would have performed more dutifully the job of insulating top officials from legal responsibility for actions that appeared to violate the law. Thompson writes that “the Attorney General was unduly protecting high-ranking officials from the regular legal process that other citizens have to undergo.” A sycophantic, politicized Justice Department is a necessity for presidents who want to play fast and loose with the law, and Clinton has now set the standard.

There is much more. The many executive orders that have pushed executive power far beyond that of the most imperial of earlier presidents are discussed ably by Pepperdine law professor Douglas Kmiec. The government’s love affair with civil-asset forfeiture and general hostility to property rights are illuminated by Cato’s Tim Lynch. Berkeley law professor John Yoo discusses Clinton’s free-wheeling adventurism in foreign affairs.

The part of the book that I found most intriguing was that on the three “wars” waged by Clinton, all shunting aside the law in order to win public-relations points for himself and the Democratic Party: first, the war on tobacco, brilliantly analyzed by Robert Levy (Cato’s senior fellow in constitutional studies); second, the war on firearms, dissected by Alabama Attorney General Bill Pryor; and third, the war on Microsoft, with Boyden Gray (legal counsel to the first President Bush) doing the honors.

The fact that so many influential groups—especially the legal profession—have turned a blind eye to the Clinton administration’s repeated and egregious attacks on the rule of law is extremely disquieting. Evidently, presidents who hew to leftist pieties can now expect to get away with constitutional murder. And even presidents who don’t hew to leftist pieties may read from the Clinton blueprints on the maximization of power. Thanks to Cato for putting a high-powered spotlight on this serious problem.

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