The Trump campaign and the first weeks of the Trump presidency have raised concerns about his indifference to the norms of American government. Trump shows no concern for conflicts of interest and disregards norms of truth telling. Perhaps most troubling is his attitude towards the law. When a judge issued a hold on the President’s executive order on immigration, Trump tweeted:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
Many conservative and progressive critics have worried whether Trump understands the rule of law and accepts that his decisions may be subject to judicial review.
When it looks like the rule of law is in jeopardy, it’s easy to affirm your commitment to that principle. But this shouldn’t be easy. In this post, I want people to understand what commitment to the rule of law requires.
So what do we mean by ‘rule of law’? Jeremy Waldron writes that:
The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology… the Rule of Law is not just about government. It requires also that citizens should respect and comply with legal norms, even when they disagree with them. When their interests conflict with others’ they should accept legal determinations of what their rights and duties are.
The rule of law seems foundational. The alternative is authoritarianism. But there are two questions you should ask yourself before you pledge an absolute commitment to the rule of law.
The first question is, am I willing to constrain myself to respect norms of legal process even when my party is in power?
Nicholas makes this point beautifully in Vox. First, he argues that whether Trump respects the rule of law could have profound implications for health care. Trump could, for example, decide not to enforce key provisions of the ACA. But Nicholas points out that President Obama also selectively enforced the ACA when that suited his policy interests.
At key points, President Barack Obama delayed aspects of the ACA in an effort to put health reform on a sound footing. The delays were classic examples of executive overreach; they never should have happened.
Nicholas said so on this blog at the time, making him one of the few consistent progressive defenders of the rule of law. This is the cost of commitment to the rule of law: you need to be ready to put your own goals in jeopardy.
Many people will look at the first question and reason that only a hypocrite and cynic would set aside her commitment to the rule of law when it was in her advantage to do so. But it’s not that easy. The second question about the rule of law is, am I willing to respect norms of legal process even at the expense of other substantive moral commitments I hold?
Try to imagine yourself in a situation where the government and its laws uphold a deeply unjust policy. Go reread Martin Luther King’s Letter from the Birmingham Jail. King wrote the letter to criticize moderates who opposed his tactics of non-violent resistance.
You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask, “How can you advocate breaking some laws and obeying others?” The answer is found in the fact that there are two types of laws: there are just laws, and there are unjust laws. I would agree with St. Augustine that “An unjust law is no law at all.”
King’s commitment to racial justice led him to select which laws he would respect and which he would not. For him, the hypocrites were those who would not make this choice.
I have almost reached the regrettable conclusion that the Negro’s great stumbling block in the stride toward freedom is not the… Ku Klux Klanner but the white moderate who is more devoted to order than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says, “I agree with you in the goal you seek, but I can’t agree with your methods of direct action…”
Right now, you may not believe that you have to face a choice between devotion to order and devotion to justice. You may be confident that, for example, Trump will lose in court on his executive orders. This confidence is foolish. For at least the next two years, the Republicans can pass laws as they see fit. They will fill many open judgeships with conservative jurists. Trump will hire lawyers who are competent to draft his executive orders. Like King, you may have to choose between what judges say the law is and what you think is just.
Get clear now on what you think about the rule of law. You may have substantive views about justice that are more important to you than your commitment to “well-established norms” of legal process. If so, you are not an absolutist for the rule of law. Your commitment is limited and you should clarify those limits: here is where I follow the law, and here is where I go to jail.