WASHINGTON-As President Clinton’s term in office draws to a close, his mission has become to secure a “legacy” for the history books. Here’s one: In ways large and small, in matters political and personal, in legislation, executive orders, executive branch actions, court briefs and conduct in office, the president has seriously undermined the cornerstone of American democracy-the rule of law.

So argues The Rule of Law in the Wake of Clinton, a new Cato Institute book edited by Cato Vice President for Legal Affairs Roger Pilon. Containing 15 essays by scholars, lawyers, lawmakers and cultural critics, the book chronicles Clinton’s utter disregard for “a nation of laws, not of men.” But unlike with other recent books, here the principal focus is on basic rule-of-law issues, not scandal.

University of Virginia Law Professor Lillian R. BeVier opens the book with a scholarly essay defining the rule of law as “a legal and political order in which clear, impersonal, universally applicable, general laws constrain the conduct of both individual citizens and those who govern them.” The essays that follow show how far from that mark the Clinton administration has strayed.

“The rule of law is especially important and most rigorously tested when those who are charged with responsibility for protecting the rule of law are alleged to have broken the law,” writes Sen. Fred Thompson (R-Tenn.). Thompson’s essay examining China’s illegal contributions to the 1996 Clinton-Gore campaign, and the abject refusal of Attorney General Reno to investigate the matter, lead him to conclude that “there can be no clearer example of the undermining of the rule of law.”

ACLU President Nadine Strossen’s essay focuses on the erosion of speech and privacy rights under Clinton, but not before exposing some of the egregious discriminatory aspects of Clinton’s stepped-up war on drugs, which has deprived many blacks of their right to vote. From restrictions on habeas corpus to Filegate to federal databases to Internet censorship and more, Clinton has worked closely with the Republican Congress to undermine the rule of law. But “the Clinton administration bears the brunt of the blame for all those devastating assaults on cherished constitutional rights,” says Strossen.

Roger Pilon looks at Clinton’s disdain for constitutionally limited government. Repeatedly, Clinton has acted “as if the Constitution were an empty vessel to be filled with his policies and programs.” You soon realize, Pilon concludes, “that there is indeed no problem too personal or trivial for his, and the federal government’s, attention.” Former Assistant Attorney General Douglas W. Kmiec of the Pepperdine University School of Law draws a similar conclusion about Clinton’s use of executive orders. Unrestrained by constitutional limitations, Clinton issues executive orders to implement his policies, often without any citation of statutory authority, thereby bypassing legislative procedure.

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Timothy Lynch, director of the Cato Project for Criminal Justice, notes that “Clinton has exhibited contempt for the very Constitution he took an oath to uphold,” as evidenced by his support for warrantless searches of public housing units, warrantless drug testing in public schools, a weakening of the right to trial by jury and expanded property forfeiture. Clinton’s record on upholding the rule of law for economic liberties is similarly shoddy. James Wootton, president of the U.S. Chamber
Institute for Legal Reform, examines the administration’s resistance to compensation for “regulatory takings” of private property. But when the federal government does have power to override state tort law that frustrates interstate commerce, Wootton says, Clinton refuses to use it.

Cato Senior Fellow in Constitutional Studies Robert A. Levy explains how the war on tobacco led to a settlement, supported by the administration, that violates both antitrust laws and the Constitution. The administration then launched its own war. Alabama Attorney General Bill Pryor focuses his attention on the illegitimate war on guns, which undermines centuries-old common law principles. And former White House Legal Counsel C. Boyden Gray tackles the war on Microsoft, which “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.”

But the administration has undermined legal institutions as well. Former Assistant Attorney General Theodore B. Olson chronicles how the Clinton-Reno Justice Department has been thoroughly politicized. John C. Yoo, professor of law at the University of California, Berkeley, shows how the administration’s foreign policy has abused constitutional restraints on the use of military force abroad while ceding the authority of the federal government itself to international institutions.

The book also examines the failure of the traditional guardians of the rule of law to defend it against Clinton’s onslaught. Former Justice Department attorney Daniel E. Troy observes that the political parties, like the country at large, were overwhelmed by the administration’s scandals to the point of ignoring their traditional responsibilities. University of Illinois law professor and Cato Visiting Senior Fellow in Constitutional Studies Ronald D. Rotunda demonstrates how, in the face of sustained assaults on the rule of law, his colleagues in the bar and legal academy were largely silent, when not complicit, for political reasons. And author David Horowitz, assigned to grade the performance of the media and cultural institutions, says that some of them actually acquitted themselves “as well as one has a right to expect,” but in the end it was the Republican Party that failed to make the case politically for upholding the rule of law.

This book draws together the Clinton administration’s many assaults on the rule of law. After reading the manuscript, Carter administration Attorney General Griffin Bell remarked: “This collection of essays on the Clinton-Gore use of executive power demonstrates that our constitutional system is in disarray. The rule of law is severely damaged. The Department of Justice is no longer a neutral zone in the government. There is an appearance that the powerful are treated better by the law than the powerless; that the president, the vice president and others of the privileged class are above the law. Our only hope to preserve the constitutional system vouchsafed to us is the dismissal of the present executive department, root and branch.”

Contact:  Roger Pilon, vice president for legal affairs, 202-789-5233
Randy Clerihue, director of public affairs, 202-789-5266

The Cato Institute is a nonpartisan public policy research foundation dedicated to broadening policy debate consistent with the traditional American principles of individual liberty, limited government, free markets, and peace.