More Ideas that Can Help Repair and Extend the Rule of Law

These proposals augment those made in Paul Rosenzweig and Vishnu Kannan's important recent article on the subject.


Like co-blogger Jonathan Adler, I was greatly impressed by Paul Rosenzweig and Vishnu Kannan's recent article on "Repairing the Rule of Law: A Post-Trump Agenda."I agree with nearly all of their proposals, with the possible exception of DC statehood. On the latter, I don't have strong views either way, though I agree with Jonathan's comment that it doesn't really qualify as a rule of law issue. Jonathan is also right to emphasize that these reforms (and those Jonathan himself adds to the list) are worth pursuing regardless of who wins the November election. Most of them address issues that are not unique to Trump, even if his tenure in office has highlighted their importance.

I would add two other items to those proposed by Rosenzweig, Kannan, and Adler. Both are also issues that predate Trump and are likely to outlast him, even though his abuses of power have highlighted their importance:

  1. Eliminate virtually limitless delegations of power to the executive over trade and immigration—and possibly other areas.

As currently interpreted by the Supreme Court, the law gives the president the authority to impose almost any immigration or trade restrictions he wishes, for virtually any reason. That is both bad policy and deeply inimical to the rule of law. I discussed these issues in  greater detail with respect to immigration here, here, and here, and trade here.

Most recently, a similar problem has emerged from the Trump administration's claim that the Center for Disease Control has virtually limitless authority to enact any regulation that might in some way reduce the spread of contagious disease (which effectively means the power to suppress or restrict almost any activity of any kind).

As discussed in various pieces linked above, this can be accomplished by stronger judicial enforcement of the nondelegation doctrine. But it can also be achieved by Congress passing laws paring back or eliminating the relevant statutes. I suspect we will ultimately need some combination of both. If claims of limitless

2. Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.

As described in greater detail in my October 2019 Atlantic article on this subject, current Supreme Court precedent largely exempts immigration restrictions from most of the constitutional constraints that apply to virtually all otherexercises of federal power. This enables the President and Congress to engage in otherwise unconstitutional discrimination on the basis of religion, ethnicity, and political speech, and to exempt immigration detention and deportation from due process constraints that regulate other serious deprivations of liberty. The effect of this double standard is both a menace to the rule of law that lacks any basis in the text or original meaning of the Constitution, and a whole host of injustices (including many that impact US citizens as well as potential immigrants).

Eliminating the double standard, would not result in the end of all immigration restrictions. Far from it, in fact. But it would eliminate the use of unconstitutional discrimination, and subject enforcement measures to the same types of due process constraints that we take for granted in other areas of law.

As with nondelegation, the elimination of constitutional double standards on immigration law can be accomplished by some combination of court decisions reversing or limiting the relevant precedents, and congressional action. The No Ban Act proposed by congressional Democrats would be a great start on the latter front. It would impose important new constraints on both discrimination and delegation in the immigration context.

Much more can be said both on these two topics and on the more general issue of strengthening the rule of law. I am grateful to Paul Rosenzweig, Vishnu Kannan, and Jonathan Adler for jump-starting this much-needed discussion, which I hope will continue over the next few months and beyond.

NEXT: "A Forced, Public Confession of Sins ... Is a Humiliation ... Incompatible with the ... Democratic Principles of the Dignity of Man"

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  1. While decent ideas, neither seems particularly connected to our most egregious abuse of the rule of law: Political investigations and prosecutions of those that are not politically agreeable to the permanent bureaucracy.

  2. So what abuses of immigration law are racist? How so?

    And are you serious about executive power especially in the area of immigration? Now do DACA.

    1. Exactly. Wouldn’t this explicitly preclude not only DACA cut everything else Obama’s pen did?

      And Immigrants aren’t entitled to American due process — that’s from the same SCOTUS that gave us abortion.

    2. If a hypothetical leftwing Trump came into power who ‘abused’ his executive power in all the same ways except in a leftwing direction. Particularly if he opened the floodgates for illegal immigrants (which is Ilya’s fantasy) he’d likely revert back to his Obama era behavior of at most occasionally mildly grousing about Dems on a very detached academic level or he might even become a cheerleader. Rather than the relatively vitriolic and personal involved tone he takes now.

      1. . . . the inevitable, predictable convening of a meeting of Libertarians For Authoritarian, Bigoted, And Cruel Immigration Policies And Practices — a Volokh Conspiracy staple.

        If there’s anything this blog’s carefully cultivated class of conservative commenters can’t abide, it is some libertarian content.

  3. Rosenzweig: Orange Man Bad
    Adler: Yes Orange Man Bad
    Ilya: I agree Orange Man Bad

    Anyways this is all pretty much pointless mental masturbation since ‘Rule of Law’ in this context means Rule by Democrats and there won’t be any serious reform since the establishment is fine with all these so called ‘loopholes’ and ‘abuses’ which are actually features as long as they are in charge. The only exception being stuff that is about definitively moving more power to Dems such as DC statehood.

    1. What’s really pathetic is that Trumpkins know deep down that Trump has absolutely no redeeming qualities, that he is intellectually, morally, and temperamentally unfit for the job of president (or any other job, really — except, I guess, game show host), so they instead dodge the argument to that effect by summarizing it as “Orange Man Bad.”

      Yes. Orange Man Bad. Orange Man Sociopath.

      1. Everything you claim he is, you’re claiming your girl lost to, you realize that?

        This over the top trash talk about Trump is so stupid for that reason, in addition to all the other obvious reasons.

        1. My girl is 11 years old, so I don’t know what that means.

        2. It’s not over the top.

          Every bit of it is true. That you swallow the Kool-Aid by the gallon doesn’t change things.

  4. The problem is not with the executive, it’s with the permanent bureaucratic class.

    1. Amen! And the general import of the article is to make the administrative state which our federal government has become, even more bureaucratic. If the presidency is too powerful. that is in part because 1) the people who get themselves elected to Congress for the purpose of playing Santa Claus with the taxpayers’ money don’t have the will, or the desire, to check the executive because doing so would require exercising the power of the purse; and 2) the federal government, generally, has too much power, which is what the president is executing.

    2. Not only are they permanent, many of their agencies are also “independent” and are effectively making law.

  5. Oh no! Bad things said about Trump! Cue the hostility and outrage! Trump is the BEST PRESIDENT EVAH! Reason hates Trump! Libertarians are all leftists because Trump is the Greatest! Love it or leave it! Aaaaaauuuuggghh!

  6. ‘Restore Rule of Law!’ Cried the Antifa thug as he hurled another molotov cocktail at the Federal Courthouse and Prof Ilya and Adler nodded approvingly.

  7. If you want to understand how extremely petty this list is, look no further than: “Minimum qualifications for White House staff”. That one is followed by vague whining about Jared Kushner. (One of the men involved in the historic Serbia-Kosovo economic normalization agreement last week.)

    No, Congress is not going to define rules on who the President can have as an advisor.

    Trump continues to reveal the deficit of character in his opponents.

    1. Bigots offering pointers on character?

      I guess that’s to be expected at a white, male, partisan blog.

      1. “white, male, partisan blog”

        Aren’t you white and male? I can’t tell through the computer screen, but I suspect you’d have alluded to the fact if you were, say, a Pacific-American woman.

        Perhaps you flagellate yourself for belonging to the wrong race/sex combination. But the kind of racists who like this stuff aren’t going to forget that you’re a white dude, and sooner or later they’ll hold it against you, and you’ll have no defenses left to protect yourself. You’re egging on bigotry against the “wrong” races while hoping that despite your membership in a disfavored race you’ll get a pass from the woke crowd.

        “But I’m a loyal Party member! I fought the good fight against the clingers!”

        1. The point is not that any particular blogger is white or male.

          The point is that the blog’s roster is odds-defyingly male and remarkably, old-timey white.

          At some point, the evidence prompts the question: Why?

          At another point, the evidence tends to answer the question.

          Obsolete clingers do not like this to be mentioned.

          1. While it is unfortunate (and needs to be remedied) white people have the benefit of better education that most minority groups. Older people have had the time to develop wisdom.

            These factors probably explain the demographics of this blog (assuming your estimation is correct – I remain uncertain of that assumption)

    2. Who cares about the justification?

      I do think it’s a good idea to have some minimal qualification requirements. Do you?

      How do you feel about nepotism? No future RFKs or Hillaries. Sound good?

      1. You only have to be a native born citizen, 35 years old, and get elected, to be president. “Minimum qualification requirements’ to be Whitehouse staff would do nothing, in itself, to combat nepotism. And it’s just more pointless credentialism.

        1. That’s a good put, BCW.

          I read ‘Disqualification of family for POTUS’ and thought it meant from the Cabinet. Yeah, that would require a Constitutional Amendment for not a lot of value IMO.

          Dunno if I’d call minimal qualifications mere credentialism. That would depend on what the qualifications are. I’ll agree that a PhD or law degree needn’t me required.

          1. I like how people are acting as if this is unheard of. The statute that establishes the Director of National Intelligence, for example, says, “Any individual nominated for appointment as Director of National Intelligence shall have extensive national security expertise.”

            To be sure — and in keeping with the theme of this post — Trump simply broke the law, first by naming an unqualified “acting” DNI rather than nominating one, and then by illegally nominating someone who doesn’t meet the statute and saying FYTW.

      2. “I do think it’s a good idea to have some minimal qualification requirements”

        Like what? Perhaps only white people? Or Men? Or land owners? What other “Minimal requirements” would you like to enforce?

        “Minimal requirements” seem to be a way to restrict power and suppress minorities and minority viewpoints.

        1. All of those AL.
          I always say disparate impact is secretly intentional discrimination.

          1. So, your “minimal qualifications” are effectively intentional discrimination.

            And yet you support them?

            1. Yes. I favor anything to keep minorities in the White House, even as subordinates.

      3. Hmmm, some sort of degree? So, Lincoln could not serve. Neither could Steven Jobs, Larry Ellison, David Green, or Michael Dell.

        No nepotism. Bye bye Bobby Kennedy (despite my conservatism, he was . Same for James Roosevelt and John Eisenhower. I despise Hillary but she had no official portfolio (and Eleanor Roosevelt had a very similar role – which she fulfilled much more effectively).

        Vast amounts of experience in a related field? Well, Frank Knox (newspaper editor)would not have been there to be FDR’s Secretary of the Navy.

        See where this is goint?

      4. Minimal qualifications to be an “advisor”? No. The president can decide who he listens to.

        Security clearance may be needed to get access to some specific sensitive information though.

  8. Ilya predictably wants to do away with immigration restrictions.

    1. Congress should pass an immigration law to fix some problems caused, in large part, by … their unwillingness to pass an immigration law.

      Yeah, good idea!

    2. I like how in contrast to his immigration positions Ilya is a veritable wall when it comes to interacting or responding on this blog. Unlike other contributors who actively respond, engage, probe, use, or acknowledge feedback or questions in various ways Ilya posts are basically one way monologues. I mean contributors aren’t obligated to entertain feedback but it can provide a glimpse into their personality.

      Given this, if people had the chance to personally host illegals in their house I wonder how enthusiastically he’d jump at the opportunity relative to the rest of the population.

  9. More Ideas that Can Help Repair and Extend the Rule of Law Implement my Deranged Open Border Globalist Fantasies

  10. My suggestion would be that the Courts quit just making it up on the fly.

  11. You can’t repair something that never existed.

    The “rule of law” is a myth.

  12. Oh Ilya,

    “Subject immigration restrictions to the same constitutional constraints as those that apply to other federal laws.”

    the backdoor open borders argument… Amazing. Hell, we couldn’t even restrict suspected terrorists from entering the country with those constraints.


  13. #3 Remove Democrat Privilege and Restore a Blind Lady Justice

    #4 Arrest everyone at the SDNY

    #5 Arrest every judge in the D.C. Circuit

    #6 Arrest District Judges Berman-Jackson, Sullivan, Contreras, and Boasberg

    1. #7 Arrest that District Clerk that “randomly” assigns all politically charged cases to corrupt hacks like Berman Jackson and Sullivan.

      1. You got some froth on your screen, looks like.

        1. You must be new here.

          He could call for liberals to be gassed, sent to Zyklon showers, placed face-down in landfills, and shot as they open front doors . . . and the Volokh Conspiracy’s Board of Censors would resemble matadors as they let it pass.

          But let a liberal poke fun at conservatives, or use the term “c@p succ@r” or “sl@ck-j@w” . . . and the censorship will be swift. Because ‘civility standards.’

          1. People here across the spectrum generally are downright polite and articulate compared to most places. If you need any proof go into the archives and watch the collective IQ of the postings drop to room temperature level whenever an Ilya post got bumped to the front page on WAPOO.

            Of the few people I know were moderated here, all were rightwing leaning. Generally it seems Volokh and Co have decided to go with a lighter touch nowadays which I strongly prefer. Most places are overmoderated.

          2. “He could call for liberals to be gassed, sent to Zyklon showers, placed face-down in landfills, and shot as they open front doors”

            If I did that for whites, I’d be the organizer at a BLM riot and be swimming in millions of corporate dollars.

            1. Surely you have some examples of that, then.

                1. Yeah, BLM is a singular movement that is always calling for gassing white people. All the time.

                  The fact that you thought that was some kind of factual comeback is pretty tragic.

        2. It actually was demonstrated, during the Clinton administration, that cases involving Clinton were being diverted from the normal “random” assignment, to be handled exclusively by a small clique of judges Clinton himself had appointed.

          Don’t believe “random” assignment of cases is genuinely random, unless they use a bingo cage in front of witnesses.

          1. Got a source for that doozy?

            1. Fascinating, I’ve posted links to an AP story about it twice now, and the comments don’t show up.

              1. Make that three times.

                Try searching for “Former GOP U.S. attorney named to investigate D.C.’s chief federal judge”; You might have to go a page or two deep into the search results, Google is burying this particular story.

                “WASHINGTON – In a rare step, a judicial panel has hired a former U.S. attorney to investigate why the chief federal judge in Washington specially assigned the cases of presidential friends to judges appointed by President Clinton, legal sources said Tuesday.”

                1. Yup, that’s interesting, perfectly normal url, but if I try posting a link to the story my comment vanishes.

                  Let’s see if this one posts: Chief Judge Hires Lawyer In Inquiry Into Assignments

                  I had to go to DuckDuckGo to find this one, Google is being very stuborn about not finding this particular scandal.

                  1. This is an inquiry, Brett.

                    1. Yes, it’s an inquiry into why she did it. THAT she did it is uncontested, though she did initially lie about it.

                      Like I said: Don’t assume that “random” assignment of cases to judges is actually random.

  14. It seems pointless to have a comments section any more. The commenters do not even pretend to be serious and are about as brain-dead and juvenile as the guy in the White House they support.

    1. Oh…look its the ‘leftist calls out for more censorship’ time again. I start to wonder when I don’t hear at least one every hour.

      1. . . . and they walk into every trap that is set for them.

  15. The Supreme Court has very curiously exempted abortion decisions from legal constraints that apply to other interpersonal relations decisions.

    Would Professor Somin agree that the rule of law would be strenghthened if this peculiar exemption were ended, and abortion matters were subjected to the same legal constraints as other matters?

    The exemption in both cases, prenatal and extraterritorial, is due to exactly the same constitutional rationale. If one can be characterized as a mere mistake or misunderstanding, the other must be as well.

    1. In particular, anti-choice people have routinely characterized the court’s abortion choice jurisprudence as lawlessness or a lack of rule of law. Some are just upset at others excercising freedom of choice and having different moral values than them.

      The court has made clear that freedom of choice in immigration and abortion represent similar automomy and sovereignty issues. It has said freedom of choice is implicit in the very idea of autonomy, national as well as personal. It has also characterized the prenatal and the extraterritorial in similar terms. Neither has any rights that we are bound to respect.

      I agree with Professor Somin on several things. I agree that the Constitution has vested key powers of choice on immigration matters in Congress, not the President. And I agree that it’s perfectly legitimate for Congress, in its discretion, to both apply traditional moral principles, and impose regularity in rules and procedures of decision making, in deciding what to do about immigration. It could, if it wants, choose to do things the way Professor Somin would like. It has that freedom of choice.

      But it also has the freedom to do things dofferently. When Congress chooses to delegate these matters to the President, its choice is the law. Respecting its choice to delegate, and the decisions the President makes in accordance with that delegation, is respecting the rule of law.

      I find the divergence of opinion on abortion and immigration hypocritical. It is perfectly legal to abort a full-term fetus in several states in this country (states with no gestational age limit on abortions). And there’s absolutely no constitutional difference between an extraterritorial alien and a viable fetus in terms of potential state interest, and none between the extraterritorial and the prenatal of any kind in terms of personal rights and hence, as the court has interpreted the meaning of lack of personal rights, personhood.

      Given the identical constitutional status, I think it’s rediculous to say that opposition to abortion is nothing but religious superstition, as many commenting on this blog regularly do, and then come out and insinuate that freedom of choice on immigration is somehow against “the rule of law.” Freedom of choice on one can’t possibly be either more or less antithetical to “the rule of law” than freedom of choice on the other. Right now, freedom of choice on both matters IS the law, and to accept being ruled by that fact, as Chief Justice Roberts recently pointed out, is to accept the rule of law.

      If anything, the fetus has the stronger claim. It is much closer to citizenship than the foreigner is.

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