WILL WE CONTINUE TO HAVE ELECTIONS? I get this question often. The answer is yes. Claiming that the law is irrelevant to the current administration is not just wrong; it’s dangerous to you and to society. Steve Vladeck explains this (below.) I subscribe to his blog “One First” and love it. If in my next life I come back as an attorney, his influence will have been a big factor.
Law, Lawlessness, and Doomerism
…I wanted to use this week’s bonus issue to write about an exasperating attitude I’ve increasingly been seeing and/or confronting out in the world—both in in-person conversations and on social media. At its core, the attitude is that, given the Trump administration’s behavior, law doesn’t (and legal constraints don’t) matter anymore. Thus, every time I bring up or post about a lower-court ruling against some new Trump initiative, or why some proposed action would violate existing legal constraints, I inevitably get some volume of responses along the lines of “it doesn’t matter,” “it won’t make a difference,” and/or “I’m tired of academics insisting that these constraints are relevant.”
There are two very different problems with these arguments, but they both merit fleshing out. First, as a factual matter, these arguments are simply silly. Beyond the fact that all of us are still very much living in a world in which our behavior is shaped by scores of legal rules, one need not look especially hard to see all kinds of ways in which law and legal constraints are regularly having a major influence on the current administration—even if they are having less of an influence than many of us might prefer and/or less of an influence than they would’ve had on any prior administration. And although there are far too many examples of this administration acting in defiance of legal constraints (most recently in destroying an alleged Venezuelan drug boat that we apparently could have interdicted), that doesn’t actually prove that law and legal constraints are irrelevant; it proves that they are imperfect. Alas, that has been true in far calmer times than the ones we live in today.
Second, and more importantly, these arguments are, in my view, affirmatively dangerous. It’s not just that authoritarian (or authoritarian-curious) regimes depend upon a desensitized, demoralized, and even fatalistic public to arrogate power; it’s that collapsing the distinction between what the government claims it can do and what it’s allowed to do may end up inflicting far more damage on the rule of law than the underlying malfeasance. As usual, Justice (Robert) Jackson may have put it best in his dissenting opinion in Korematsu, where he contrasted the difference between internment itself and Justice Black’s majority opinion providing a legal rationalization for it:
Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens.
With regard to the descriptive claim—that law isn’t shaping the Trump administration’s conduct—consider all of the (many) cases in which the Trump administration is (1) taking action that has been challenged on grounds of illegality; (2) losing in lower courts; (3) not appealing—or, at least, not seeking emergency relief while it appeals (so that the lower-court rulings are going into effect); and (4) complying with the adverse ruling(s).
Yes, there are several notorious examples of the government appearing to defy rulings of lower courts. But we now have enough data to say, with confidence, that these have been the exceptions that prove the rule. The Trump administration is complying with the overwhelming majority of adverse rulings it is receiving—something that we’d hardly expect if law doesn’t matter, and that should drive home exactly why these cases, and the laws they are enforcing, are so important. Part of the problem here is that there’s a lot more public discussion of the smattering of cases in which the government has resisted the courts than the overwhelming majority of cases in which it has “taken the L.”
Consider, in this respect, the litigation over President Trump’s March 15 proclamation invoking the Alien Enemy Act of 1798 against alleged members of the Venezuelan gang Tren de Aragua (TdA). Yes, the government almost certainly violated Chief Judge Boasberg’s TRO on March 15 itself. But in the almost six months since then, I’m not aware of any reported cases of individuals who have been removed under the auspices of the AEA or the March 15 proclamation. Some of that is because of district court injunctions; some of it is because of the Supreme Court’s own interventions; but the upshot is the same: The government has been unable to exercise the authority the President has claimed since the confusing first hours on March 15—because (1) courts have ruled against it; and (2) the government has complied. (See also the birthright citizenship executive order, which still has not gone into effect anywhere in the country—because of adverse judicial rulings that the government has obeyed, even after the Supreme Court’s ruling in CASA.)
One can tell an analogous story about how the Trump administration has surged federal law enforcement (and even military) capacity to date in Washington, D.C., and Southern California. In both cases, the President has arguably exceeded the relevant legal limits. In both cases, courts pushed back at least somewhat (in D.C., against Attorney General Bondi’s effort to take full control of the Metropolitan Police Department; in California, against a series of violations of the Posse Comitatus Act). It’s not just that the government has generally abided by those rulings; it’s that the fact that the entire conversation is being informed by the legal constraints. If law was irrelevant, the President wouldn’t be dancing so gingerly around the Posse Comitatus Act; and he wouldn’t be so shy, for whatever reason, about invoking the Insurrection Act.
As ever, I don’t mean to overstate things. We’ve seen large-scale contexts in which what we thought were legal constraints haven’t actually stopped massively disruptive (and arguably unlawful) behavior by the executive branch—especially in the twin bureaucracy-heavy categories of spending/funding/appropriations disputes and firing government employees. But the defects there are not that the law is irrelevant; in the funding cases, the defect has been that the law is not well-designed to provide the kinds of relief that could thwart large-scale behavior along the unprecedented lines we’ve seen from the Trump administration (because of, among other things, the doctrine of sovereign immunity and the very specific procedural rules that attach when suing the government for breaching contractual obligations). And in the removal-of-employee cases, the defect is that the current Supreme Court has a different view of what the relevant legal constraints are than … a whole lot of the rest of us.
That’s a big problem on the ground in these cases, and for those affected by these actions. Indeed, I’d even argue (and have argued) that these developments are wrong. But they’re not proof of law’s irrelevance. One need look no further than yesterday’s ruling in the Harvard case; or the various district court rulings in the law firm cases; or countless other examples; to see the Trump administration regularly being stopped from doing unlawful things—both formally and practically—by law.
Indeed, for as critical as I’ve been of how the Supreme Court has handled Trump administration emergency applications, it’s worth taking a beat to reflect upon the reality that the administration has gone that route in the first place—i.e., it has availed itself of interim legal remedies available to the government in a minority (albeit a highly visible minority) of the cases it has lost. One can think that the Supreme Court has enabled too much of what the Trump administration is doing and still think that the enterprise is a decidedly law-driven one, even if the law driving it isn’t what you or I would settle upon if we had the power, and even if the Court isn’t doing an especially good job of telling us what specific legal principles are doing the work. The negative space (the appeals that aren’t being brought) matters too—especially when it’s so much bigger.
All of this is, and ought to be, fodder for longer-term conversations about how to improve the system of legal remedies when governments break the law. Indeed, I’ve spent most of my career writing about and litigating this topic—during Democratic presidencies as much as during Republican ones. A common theme of that work (to say nothing of my Federal Courts class) has been to describe and bemoan what has long been an unfortunate but undeniable feature of American law, i.e., that Chief Justice Marshall was voicing an aspiration, not a promise, when he quoted the Latin maxim “ubi jus ibi remedium” (for every right, there is a remedy) in his majority opinion in Marbury v. Madison. That’s just never been true in the United States—even if we might wish that it had been (and is). Again, that history goes to the insufficiency and imperfection of legal constraints on executive action; not their irrelevance.
In the short term, though, the relevant point is less about the past or the future, but rather the reality of the present: This administration may take undue glee in testing legal limits and pushing legal boundaries; and it may also engage in plenty of behavior that is just affirmatively lawless. And even a lot of the stuff it’s doing that’s legal may still be indefensibly disruptive, destructive, and divisive on policy grounds, morality grounds, or both. But none of that is proof that law isn’t serving as a critical constraint. If anything, given how completely useless ordinary political constraints have been over the past seven months (<cough> Congress <cough>), law is perhaps even more important as a check on the current President than it has been for some time; it’s all we really have, at least until next November. Indeed, where would we be today without legal constraints and the district and circuit courts enforcing them?
As for why legal doomerism isn’t just counterfactual, but is affirmatively dangerous, this point is more normative than descriptive, but it goes back, again, to Jackson’s Korematsu dissent. Jackson’s central objection to the majority opinion was blurring just this kind of distinction—between a military claim of necessity and a bureaucratic claim of legality.
I’m not an expert on authoritarian regimes or the broader political science of democratic decline, but I don’t think one needs a Ph.D. in that field to understand the extent to which collapsing the distinction between what governments claim the law allows and what is actually true necessarily enables further bad behavior by the offending government actors—even if there’s reason to believe that the legal constraints are not fully enforceable. Laws matter not because they are always followed (he says with an eye toward the various speed cameras between his home and his office), but because they provide a yardstick against which to measure and assess others’ conduct. If more and more people become persuaded that the yardstick is no longer able to produce accurate measurements, then almost every debate reduces to whether the underlying government action is popular or wise rather than whether our constitutional system (versus raw political power) permits it.
Jackson—who spent much of his pre-Supreme Court career as a government lawyer (if you haven’t read his justly celebrated speech on the duties and responsibilities of federal prosecutors, you really should)—not only understood this distinction, but crystallized it in a way that we don’t reflect upon enough today. For him, the issue wasn’t the internment policy itself; it was the government’s choice to prosecute Fred Korematsu for violating an exclusion order that Jackson thought was unconstitutional—to conflate law with necessity. “A military commander may overstep the bounds of constitutionality, and it is an incident,” Jackson wrote. “But if we review and approve, that passing incident becomes the doctrine of the Constitution.” Jackson didn’t fear executive power in Korematsu; he feared collapsing the distinction between assertions of executive power and the legality of such assertions.
So too, here. Presidents will break the law. Many presidents have broken the law. And although we can debate until the cows come home whether past presidents should have been held to greater account for their lawlessness, it seems clear beyond peradventure that the rule of law in the United States survived those past transgressions. What it may struggle to survive is the emergence of any kind of popular consensus that law increasingly doesn’t matter, especially when the relevant evidence is decidedly to the contrary.
Such a factually deficient but logically self-fulfilling prophecy is—and would be—a far more subtle, but far more fatal, blow to our constitutional democracy than anything President Trump (or the Supreme Court) has done since January 20.