Lip service.

President Clinton swore an oath to preserve, protect, and defend the Constitution. He didn't mean it.

Mr. Troy is an associate scholar at the American Enterprise Institute and a lawyer in Washington, D.C.

It's normal for a President under siege to call scandal a ''diversion,'' but Bill Clinton is the first President whose scandals are diversions from his other scandals. His critics are so focused on his lawlessness in his personal capacity that they may have lost sight of a far worse scandal: his subversion of the Constitution on matters of policy. The firings at the Travel Office, the abuse of FBI files, even the subornation of perjury and the obstruction of justice all pale beside this President's consistent refusal to obey constitutional requirements in at least five respects.

1. Defying the Supreme Court. Clinton claims that his Administration has performed a top-to-bottom review of its affirmative-action programs to conform with the Supreme Court's decision in Adarand Constructors v. Pena (1995). In fact, he is refusing to comply with binding precedent.

In Adarand, the Court held that racial preferences must satisfy ''the strictest judicial scrutiny.'' A racial classification, the Court said, will ''seldom provide a relevant basis for disparate treatment.'' Last month, the White House issued Mr. Clinton's announcement of a new policy, which the President claimed was designed to conform to Adarand. In the press release itself, however, the White House bragged that racial preferences would continue to be employed in industries representing 75 per cent of the Federal Government's expenditures on procurement contracts with small businesses. In common parlance, three-fourths of the time is not ''seldom.''

Mr. Clinton's new policy presumes that all businesses owned by American Indians or by black, Hispanic, or Asian Americans are disadvantaged. Anyone else who wants to be considered disadvantaged has to persuade the Small Business Administration. In any industry where these ''disadvantaged'' businesses are not getting the ''right'' percentage of contracts, their bids will be treated as if they were 10 per cent lower than they actually are.

This approach is far from the kind of individuated inquiry into whether particular persons or entities have been subjected to discrimination that the Supreme Court demands before it will allow the government to use racial classifications. By adopting this policy, President Clinton is willfully refusing to follow the Supreme Court's interpretation of the Constitution.

Now, there is a principled argument that a President may, in extraordinary circumstances, adopt a different view of the Constitution from that of the Supreme Court. Then - Attorney General Edwin Meese made this point during the Reagan Administration, only to be attacked by the New York Times for ''making a calculated assault on the idea of law in this country.'' Bill Clinton has not taken the Meese position. Instead, he has flouted a ruling he claims to acknowledge as binding law. (No word yet from the New York Times on this ''assault on the idea of law.'')

2. Violating the Vacancies Act. In 1868, the Senate passed the Vacancies Act to protect its constitutional power to review and/or approve presidential appointments. The act limits to 120 days the time an official in an Executive Branch post that is subject to Senate confirmation may fill that office in an ''acting'' capacity -- i.e., without Senate approval. If the President submits a nomination to the Senate within four months of the person's being put into the position on an ''acting'' basis, then the nominee may remain in the job through the confirmation hearings. If the Senate rejects the nominee, however, then he or she may stay in office only for another 120 days from the date of the Senate action (or from the date of the nominee's withdrawal).

President Clinton routinely refuses to bring his nominees before the Senate, mainly because many of them are too extreme to be confirmed. As National Journal recently reported, ''each department in the Clinton Administration has had at least one temporary officer who served more than 120 days before the President submitted the nominee to the Senate. Of the 64 acting officials tallied up by the Congressional Research Service in late February, 43 had served beyond the 120-day limit'' (emphasis added). Particularly egregious was President Clinton's appointment of Bill Lann Lee as ''acting'' assistant attorney general in charge of the Justice Department's Civil Rights Division in the face of the Senate Judiciary Committee's blocking his nomination.

Clinton's refusal to comply with the Vacancies Act is no mere technicality. It is a direct challenge to the Senate's constitutionally assigned role in the appointment process. The Constitution's Appointments Clause empowers the President to ''nominate, and by and with the Advice and Consent of the Senate, . . . appoint . . . Officers of the United States.'' If key Executive Branch officials could serve on an acting basis indefinitely, they would never need to seek Senate confirmation. As Sen. Robert Byrd (D., W.Va.) has said, ''It is time for this institution to state in no uncertain terms that no agency -- none, not even the Justice Department -- will be permitted to circumvent the Vacancies Act or any other act designed to safeguard our constitutional duties.'' 3. Usurping the Senate's Treaty Power. Another of the Senate's constitutional duties is the ratification of treaties. Article II of the Constitution expressly provides that the President ''shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two- thirds of the Senators present concur.'' Thus, the treaty-making power is explicitly a shared power.

Here again, President Clinton has failed to respect the constitutional prerogatives of another branch of government. Consider the Anti-Ballistic Missile (ABM) Treaty with the Soviet Union, which has been legally void since the USSR fell apart in 1991 (see ''Live Missiles and Dead Letters,'' below).

Since this agreement was important enough to require Senate approval in 1972, it would seem that its reimposition would also require Senate approval. In case there were any doubt, the Senate in May of 1997 required that the President submit for its advice and consent any new agreement either changing the geographical scope of or increasing the number of parties to the ABM Treaty.

Nevertheless, President Clinton is unilaterally implementing the ABM's provisions vis-a-vis four states of the former Soviet Union. What is more, he has given a bureaucrat, Stanley Riveles, a position that under the obsolete treaty required Senate confirmation, and charged him with making the new agreements binding. Information exchanges required by this unratified treaty have occurred; a review mandated by the original ABM Treaty, which the Administration claims is still in force, has been postponed; and Riveles has signed international agreements without Senate confirmation.

Clinton's approach to the ABM Treaty raises justifiable fears that he will also unilaterally implement the Kyoto global warming pact, despite a 95 to 0 non-binding Senate vote against it in its current form.

4. Manipulating the Census. The Constitution requires that an ''actual enumeration'' of the nation's population be undertaken every ten years so that seats in the House of Representatives may be apportioned. Indeed, for the last two hundred years, Census Bureau agents have fanned out to count every person in America they could find. However, as John J. Miller reported [''Numbers Crunch,'' NR, July 20] statisticians and the Clinton Administration don't much like the idea of an ''actual enumeration.'' They claim that they can provide a more accurate count -- especially of minorities -- by estimating the total population on the basis of a random sample. As Clinton has explained, this is roughly the same process that is used in taking polls, although with a bigger sample.

Leave aside the political risk to Republicans from the potential manipulation of census figures. The use of sampling clearly conflicts with the constitutional requirement of an ''actual enumeration.'' Why else would the word ''actual'' be used except to safeguard against precisely this sort of political skewing of the census? It cannot be a safeguard, however, against an Administration that refuses to view the Constitution as a legal constraint.

5. Undercutting Executive Branch Accountability. President Clinton has not limited his constitutional transgressions to the arrogation of power from other branches. Many scholars believe that this President has deeply wounded the institution of the Presidency itself.

He has repeatedly invoked novel and frivolous constitutional privileges, sure to be knocked down in court, as a delaying tactic against Independent Counsel Kenneth Starr and other investigators. But he has also, absurdly, maintained that he has nothing to do with these invocations of privilege. So, for instance, Clinton claims that he doesn't know what privileges White House lawyers have asserted. The Treasury Department, not he, has asserted a ''protective-function privilege'' blocking Secret Service testimony.

Worse than his rhetoric is the fact that, more than ever before, different parts of the Executive Branch have been permitted to take different positions in litigation. The Justice Department takes a narrower view of the attorney - client privilege (as applied to government lawyers) than the White House does.

All of this undercuts the notion of the unitary Executive -- the idea that the Executive speaks with one voice. This constitutional norm arises from the vesting of ''the executive power'' of the United States in the President alone. The idea of the unitary Executive is to promote democratic accountability -- precisely what Clinton seeks to avoid.

President Clinton has been personally involved in all these transgressions. He announced the new affirmative- action policy. He decided to appoint Bill Lann Lee against the Senate's wishes. He is responsible for the ABM end-run around the Senate. He has publicly defended the use of sampling in conducting the census. At the least, his personal peccadilloes directly led to the Treasury/Justice/White House confusion. Clinton must be held to account for these constitutional violations.

Apparently, President Clinton is betting that We the People have become so blase about his lawless personal behavior that we will ignore actions that, in other Administrations, would have led to angry editorials, congressional investigations, and calls for impeachment. Having lost our capacity for outrage, we stand by and watch as President Clinton subverts the Constitution and corrupts our legal system in unprecedented ways. If only to preserve its assigned role in our constitutional system, Congress had better fight back.