Commentary

No Controlling Legal Authority

When George W. Bush takes office on Saturday he’ll have to deal with more than a divided Congress. Far more threatening is a legal culture that has reduced the rule of law to a set of political opportunities, exposing us all to arbitrary power. That culture is already on display in the confirmation hearings for John Ashcroft, which are focused on everything but the real problem — the demise of the rule of law under Bill Clinton.

Indeed, one of the good things to come from the long count in Florida is that Americans saw what happens when politics trumps law. No sooner had the Bush margin become clear than the lawyers for Al Gore swept in, shopping for votes in selected counties as they shopped for judges in selected courts. From false affidavits about dimpled chads to specious arguments about military ballots, the legal arena was soon strewn with abandoned principles. The methods perfectly matched Clintonian times.

The eclipse of law didn’t begin with Bill Clinton, of course. Its roots lie in the Progressive Era mindset that saw law not as a set of rules to secure liberty but as a political instrument for better living through bigger government. An uneasy compromise of law and politics emerged over the century, until the Clinton crowd came along. Finding even that law too confining, they simply ignored it in one area after another.

We’re all familiar with the infamous cases — Travelgate, Filegate, Chinagate, and Monica Lewinsky — code for the most obvious abuses, culminating in the president’s impeachment and a $90,000 fine for contempt of court. Below the surface, however, are many more abuses, all of which have undermined the restraint of law.

The most basic damage to come from the Clinton era has been to the very idea of limited, constitutional government. Peruse any of Mr. Clinton’s Castro-length State of the Union addresses and you’ll find programs not remotely authorized by the Constitution, all designed to make us more dependent on government. Never mind that Congress rejected most of those proposals, or that the Supreme Court has at last revived the idea that the Constitution limits the powers of Congress. Speaking from his bully pulpit, Mr. Clinton fostered the belief in government as Santa Claus — and with it the idea that constitutional limits can be ignored when power is to be gained.

But when he wasn’t trying to expand the programs of Congress, Mr. Clinton was actively widening his own powers through executive orders. Under the separation of powers, Congress is the law-making branch. Yet that has not stopped Mr. Clinton from “enacting” everything from his “Don’t ask, don’t tell” policy for the military to his American heritage rivers initiative. Indeed, he has the distinction of being the only peacetime president to have had an executive order voided by a court — his striker replacement gambit. Clinton aide Paul Begala captured the president’s attitude perfectly: “Stroke of the pen. Law of the land. Kind of cool.”

The left has been slow to learn that more government means less liberty, yet even the left has been appalled by Mr. Clinton’s assault on liberty. Anthony Lewis wrote in the New York Times: “Bill Clinton has the worst civil liberties record of any president in at least 60 years.”

Mr. Clinton has undermined speech and privacy. He’s been indifferent to constitutional guarantees regarding warrants, jury trials, double jeopardy and due process. And he has repeatedly resisted efforts to better protect property rights and economic liberties. Mr. Clinton’s assaults on the rule of law, wrote American Civil Liberties Union president Nadine Strossen, “seem animated not by ignorance of constitutional principles but rather by a brazen disregard for those principles.”

In no area has the assault been more systemic than in the litigation brought against such unpopular industries as tobacco, guns, and Microsoft.

To be sure, the war on tobacco did not begin with the Clinton administration. Plaintiff lawyers and health agencies had sued tobacco companies for years, only to be told by juries that centuries-old common law rules such as assumption of risk, rooted in principles of liberty and individual responsibility, prevented recovery. When Mr. Clinton came to power, however, the suits acquired a new, obsessive vigor. The administration’s orchestration of state Medicaid suits forced the master settlement agreement that today cartelizes the tobacco industry, ensuring a flow of billions of dollars into government coffers and trial lawyers’ pockets.

The case of guns is little different, although here the aim has been regulation, not money, since manufacturers haven’t the deep pockets of tobacco companies. Yet the strategy is the same: vilify; bring massive suits, in many places at once, on bogus legal principles; then extort restrictions that Congress is unwilling to pass.

This is legislation by litigation. And it’s the same with Microsoft: vilify, then litigate, charging “predatory innovation.” C. Boyden Gray, legal counsel to Mr. Bush’s father, said rightly that the case “represents nothing more than a successful hijacking of the government’s regulatory power by Microsoft’s competitors — an especially grievous abuse of the rule of law.”

Those are but a few examples of the systematic abuse of law during the Clinton years. It all began when Janet Reno took the unprecedented step, two weeks into her job as attorney general, of firing all 93 U.S. attorneys, giving them 10 days to clear out. The politicization of the department has proceeded apace ever since. From Waco to the raid on the Miami home of the relatives of Elian Gonzalez, it has been a remarkable tenure.

Mr. Bush now has the opportunity to restore the rule of law. But it will not be easy. The legal culture that Mr. Clinton has bequeathed to him — stretching from the legal academy to the organized bar to the bench — is run through with people indifferent to the rule of law, operating in a legal landscape now bereft of restraints that would once have checked them. A few years back, lawyer-journalist Stuart Taylor asked law professor and media mogul Susan Estrich to explain her support for Anita Hill in the Clarence Thomas matter and her opposition to Paula Jones in the case of Mr. Clinton. Her candid answer speaks volumes: “You believe in principle, I believe in politics.”

Welcome to Washington, Mr. Bush. It’s a long way from Austin.

Roger Pilon a former Justice Department official under President Reagan, is vice president for legal affairs at the Cato Institute and editor of The Rule of Law in the Wake of Clinton (Cato Institute, 2000).