Skip to main content
Find a Lawyer

Why The Liberals Who Fought For Discretion During The Clinton Administration Should Continue To Support It Now

Thursday, Dec. 06, 2001

During the Clinton Administration, when EPA Director Carolyn Browner declared that she had unlimited power to regulate air quality, industry representatives and political conservatives became enraged. Here was an administrative agency claiming the power to make the law unilaterally, at the whim of its director. Browner had claimed an almost imperial prerogative to say her word was law.

The American Trucking Association, among others, went to court and obtained a ruling in the D.C. Circuit Court of Appeals that the agency could not arrogate to itself such unilateral power to make the law. Liberals - which is to say, the vast majority of legal scholars - criticized the decision. They maintained that Browner had done nothing wrong, and that constitutional limits on administrative power were unnecessary.

Recently, the same scholars hypocritically reversed their position on administrative discretion entirely. Once vocal in supporting Browner's unbounded discretion to regulate the environment, they now oppose the President's discretion to create military tribunals. Defying common sense, they have reversed themselves at the most dangerous possible time: wartime.

Liberals Favored Administrative Discretion for Environmental Policing

This hypocrisy has deep roots. Previously, these scholars had turned up their noses at the Court's emerging federalism jurisprudence, despite the fact that it had brought Congress to account for its regulation of its co-sovereigns, the states. Then, during the Browner case, these wise thinkers used similarly questionable logic to pooh-pooh any revival of limits on executive power.

The federal government is a good thing, they said. Administrative power is necessary to deliver government services, such as ensuring clean air.

In support of their position, the liberal scholars solemnly pointed to the Supreme Court's persistent refusal to draw the line on executive overreaching in this century. And they virtually danced a jig when the Supreme Court - once again cowed by the enormity of bringing the administrative state back within constitutional parameters - ruled that Browner's overreaching was constitutional.

Now Liberals Oppose Administrative Discretion for Wartime Law Enforcement

Enter September 11. The United States is attacked on its own soil with almost 5,000 civilian casualties. These private American citizens were not collateral deaths, but rather the targets of attack. The attackers thrive on stealth, the openness of a free society, and hate. This lethal combination makes us all sitting ducks for the terrorist cells that exist not only in the homelands of the September 11 attackers, but in many free countries around the world, like Germany and Italy and Spain. Even here.

The President launches retaliatory action in response to the declaration of war against us and proceeds, with the support of 90% of the American people, to search and destroy the enemy. A few pockets of people at liberal universities like Berkeley, Harvard, and NYU engage in the narcissistic and nostalgic activity of anti-war protests, hoping apparently for a return of the love-ins of the 60s and 70s. But unlike in the 60s and 70s, we are engaged in the most just war in this country's history since the Revolution. Thus, these anti-warriors are ignored, and justly so.

The war goes well. Then the Administration turns to the inevitable question of how to try non-citizen terrorists. Using common sense, the Administration reaches the conclusion that we do not want these terrorists to enter or remain in our country, and that they are not citizens deserving the cost and publicity of a typical federal trial. Therefore, the President announces his decision to exercise his discretion to institute military tribunals.

Immediately, a hue and cry is raised by the civil rights community. Suddenly discretion is a bad thing, not a good thing. The President is called an imperialist, a royal wannabe, a tyrant. Indeed, the hyperbole has reached the stratosphere, capped by Professor Stephen Gillers' New York Times op-ed this week advising defense attorneys that they would violate ethical norms if they represented clients in such tribunals.

(Solely as an aside, why is it that when liberal law professors encounter a court decision or law with which they disagree, they always threaten to take their ball and go home? Gillers' empty threats hearken back to Yale Professor Ackerman's pathetic call to the Senate to refuse to confirm any judicial candidates because he disapproved of the Court's decision in Bush v. Gore. News flash: the real world soldiers on, even when academics go home in a huff.)

Why Criticisms of the Tribunals Are Unfair

Criticisms like these are not only childish, but entirely unfair, for several reasons. First, the notion that the Bush Administration would use such tribunals as a matter of course, rather than for a very select few, is an insult to the integrity and intelligence of the top-flight advisors this administration has assembled.

These are last-resort tribunals for noncitizens, as counsel to the President Alberto Gonzales recently noted, also in a New York Times op-ed. The Administration is not throwing away traditional civil rights. Indeed, citizens' civil rights are not even at issue, as the persons subject to the President's order are non-citizens - who traditionally have fewer rights than citizens do.

Rather, the Administration is simply trying to find sensible ways of reshaping United States policy in response to the now-revealed face of terrorism. As Professor Ruth Wedgwood so trenchantly pointed out in the Wall Street Journal this week, it would be a joke to require Miranda warnings for Afghan prisoners.

Second, welcome to Alice's Wonderland. The liberals, so satisfied with the administrative behemoth in Washington for so many years, suddenly find in wartime a need to place limits on executive power. In a letter circulating to law professors for their signature, the past vehement defenders of an expansive administrative state have suddenly discovered the rule against executive overreaching and claim that Congress must make the law, not the executive.

It is incredible that they could support giving Browner unlimited power to satisfy her whims - a decision that affected millions if not billions of dollars in the economy, and allowed those costs to be incurred without any Congressional approval whatsoever - but when the country reaches wartime, make an outcry against the President's plan to deal with terrorists in a way that is intended to protect American citizens. If there were ever an era when it is constitutional and right to give the President latitude, this is it.

Hypocrisy Compounded?

The liberals were hypocritical and inconsistent to switch sides on the administrative discretion issue. Moreover, they are all too likely, once we return to peacetime, to simply switch sides and once again support unlimited administrative discretion, thereby only compounding their hypocrisy. Sadly, it is unlikely that those crying "Tyrant" now will remember, when the war is over, the principle that used to rankle, and work to stem the increasing concentration of power within the executive branch.

To be sure, an ethic of limitation on the executive branch might have led the Administration to consult Congress before announcing the tribunals. That would have been a good thing, good for selling the Administration's plans and good for the people.

But so long as the wartime status quo continues, our executive branch has gotten the message that its power is virtually unlimited and unstoppable. That message was delivered years ago during peacetime, by liberals intent on building up a federal government that could and would swallow up the states and by a Supreme Court that clearly feels inadequate to bring the administrative state within reasonable boundaries. For reasons of common sense and equity, the same liberals should be estopped from complaining now, in the middle of this battle to save our way of life.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University. Her e-mail address is

Was this helpful?

Copied to clipboard