No Controlling Legal Authority


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

Indeed, one of the good things to come from the long count in Florida isthat Americans saw what happens when politics trumps law. No sooner had theBush margin become clear than the lawyers for Al Gore swept in, shopping forvotes in selected counties as they shopped for judges in selected courts.From false affidavits about dimpled chads to specious arguments aboutmilitary 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 liein the Progressive Era mindset that saw law not as a set of rules to secureliberty but as a political instrument for better living through biggergovernment. An uneasy compromise of law and politics emerged over thecentury, until the Clinton crowd came along. Finding even that law tooconfining, 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 contemptof court. Below the surface, however, are many more abuses, all of whichhave undermined the restraint of law.

The most basic damage to come from the Clinton era has been to the very ideaof limited, constitutional government. Peruse any of Mr. Clinton’sCastro‐​length State of the Union addresses and you’ll find programs notremotely authorized by the Constitution, all designed to make us moredependent on government. Never mind that Congress rejected most of thoseproposals, or that the Supreme Court has at last revived the idea that theConstitution limits the powers of Congress. Speaking from his bully pulpit,Mr. Clinton fostered the belief in government as Santa Claus — and with itthe idea that constitutional limits can be ignored when power is to begained.

But when he wasn’t trying to expand the programs of Congress, Mr. Clintonwas actively widening his own powers through executive orders. Under theseparation of powers, Congress is the law‐​making branch. Yet that has notstopped Mr. Clinton from “enacting” everything from his “Don’t ask, don’ttell” policy for the military to his American heritage rivers initiative.Indeed, he has the distinction of being the only peacetime president to havehad 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, yeteven the left has been appalled by Mr. Clinton’s assault on liberty. AnthonyLewis wrote in the New York Times: “Bill Clinton has the worst civilliberties record of any president in at least 60 years.”

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

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

To be sure, the war on tobacco did not begin with the Clintonadministration. Plaintiff lawyers and health agencies had sued tobaccocompanies for years, only to be told by juries that centuries‐​old common lawrules such as assumption of risk, rooted in principles of liberty andindividual responsibility, prevented recovery. When Mr. Clinton came topower, however, the suits acquired a new, obsessive vigor. Theadministration’s orchestration of state Medicaid suits forced the mastersettlement agreement that today cartelizes the tobacco industry, ensuring aflow of billions of dollars into government coffers and trial lawyers’pockets.

The case of guns is little different, although here the aim has beenregulation, not money, since manufacturers haven’t the deep pockets oftobacco companies. Yet the strategy is the same: vilify; bring massivesuits, in many places at once, on bogus legal principles; then extortrestrictions 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, legalcounsel to Mr. Bush’s father, said rightly that the case “represents nothingmore than a successful hijacking of the government’s regulatory power byMicrosoft’s competitors — an especially grievous abuse of the rule of law.”

Those are but a few examples of the systematic abuse of law during theClinton years. It all began when Janet Reno took the unprecedented step, twoweeks 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 hasproceeded apace ever since. From Waco to the raid on the Miami home of therelatives of Elian Gonzalez, it has been a remarkable tenure.

Mr. Bush now has the opportunity to restore the rule of law. But it will notbe easy. The legal culture that Mr. Clinton has bequeathed to him –stretching from the legal academy to the organized bar to the bench — isrun through with people indifferent to the rule of law, operating in a legallandscape now bereft of restraints that would once have checked them. A fewyears back, lawyer‐​journalist Stuart Taylor asked law professor and mediamogul Susan Estrich to explain her support for Anita Hill in the ClarenceThomas matter and her opposition to Paula Jones in the case of Mr. Clinton.Her candid answer speaks volumes: “You believe in principle, I believe inpolitics.”

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