Revisiting the Rule of Law and Legal and Constitutional Norms

A presidential administration can adhere to legal formalities while still undermining the rule of law.

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When my book Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law was published, one criticism I faced was that my conception of what violates the rule of law was overbroad. In particular, I asserted that some actions the Obama undertook undermined the rule of law, even though the administration's actions were not clearly illegal when undertaken and the administration obeyed judicial rulings when they went against the administration. How, questioned critics (almost always Obama supporters), could the Obama administration be accused of undermining the rule of law under those circumstances?

I don't want to revisit examples from the book, but rather to return to the broader question: Can a president and his administration undermine the rule of law while not doing anything clearly illegal and obeying judicial rulings that run contrary to its policies? This may have been difficult for Obama supporters to see at the time, but I think they would acknowledge that the Trump administration, especially Trump himself, has done this routinely.

Over the years, Trump has attacked judges' integrity based on their ethnicity, hinted that supporters at rallies should commit violence against protesters, suggested that critical media be censored, made wild accusations of election fraud in 2016 (even though he won) and of course now, among other things.  All but diehard Trumpists would likely acknowledge that some of all of these actions undermined the rule of law. Yet, with perhaps a few exceptions, Trump has not done anything obviously illegal, and his administration has consistently obeyed hostile court rulings.

Indeed, when one confronts a Trump apologist with the ways in which Trump's rhetoric and actions have undermined the rule of law, that apologist is likely to point out that Trump has acted within the bounds of legality, or at least debatable legality, and thus he is innocent of undermining the rule of law. And it's true that the Trump administration has arguably been *better* overall than the Obama administration in obeying the letter of the law, even while the president's rhetoric more directly undermines our institutions.

But I'm going to take the same position regarding Trump that I took with the Obama administration: merely heeding legal formalities, while certainly important, is also consistent with behaving in ways that undermine the rule of law.

Again, I'm not inclined to revisit the Obama-era controversies discussed in my book. And I'm certainly aware that the line between "undermining the rule of law" and "playing constitutional or political hardball" is a fine one that will spark disagreement among sincere interlocutors.

But, to take a broad example of how one can "obey the law" while undermining the rule of law, even while not engaging in Trumpian rhetoric, imagine an administration that knows that there is a 98% chance that courts (or other objective legal observers) would find that the law requires A. However, there is a not-entirely-crazy argument that the law in fact requires B. (Consider, e.g., Harold Koh's not-entirely-crazy but extremely tenuous argument, adopted by the Obama Administration because it suited the president's policy goals, that bombing Libya for months did not constitute "hostilities" under the War Powers Resolution. Okay, okay, I revisited one issue.)

The administration also knows that if it does B, it's unlikely that anyone will have any standing to challenge it. If the administration does B, has it done anything blatantly illegal? Nope, it even may have an Office of Legal Counsel or White House Counsel opinion explaining why "B" is the correct legal answer. Has it undermined the rule of law? I'd say yes, because it knows what the "right" answer would be according to objective legal experts, and chose to ignore that answer because it conflicted with its preferred policies.

That's just one sort of example, Trump's conspiratorial rhetoric is another. One can indeed undermine the rule of law while complying with legal formalities.

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  1. I think we need to distinguish between “rule of law” and “rule of norms”; They can both be important, but they’re different things.

    So, dissing a judge who rules against you is a “rule of norms” violation, while violating the ruling is a “rule of law” violation.

    Either can happen without the other.

    1. But there is also a difference between “violating” the rule of law and “undermining” the rule of law. I take Professor Bernstein to be arguing the latter.

      1. The difference is that “violating” is more objective. Suppose you criticize a judge who’s ruled against you. Does it really undermine the rule of law, or does it undermine the rule of judges?

        Kind of depends on merits of the ruling, doesn’t it?

        1. Depends on the nature of the criticism also.

          If the criticism is based on the judge’s Mexican descent then it undermines the rule of law regardless of the merits of the ruling, since the critic is not even addressing the latter.

          A rational criticism, based on the case, “We feel the judge overlooked….and intend to appeal the ruling..” seems fine.

          1. “Rule of law” isn’t the same thing as your feelings.

            1. True, but I think I have an example that cuts the other way that might show conservatives what they are getting wrong here.

              Do you know about the “stop snitching” movement? Essentially, it is a movement within some urban Black communities to not report crime to the police, because of the various forms of police abuse we are all familiar with.

              Now, so long as it just constitutes general speech (i.e., not threatening people who report a specific crime, which would be an obstruction of justice, but just generally advocating that nobody call the cops for anything), that’s protected by the First Amendment, right? It’s totally lawful.

              And yet, I think a lot of pro-police groups would say such expression undermines the rule of law. Even though not illegal, it makes proper, non-abusive law enforcement more difficult to do.

              How’s that different than what Prof. Bernstein is referening?

              1. Police brutality undermines the rule of law.

                The militarization of police forces undermines the rule of law.

                Qualified immunity undermines the rule of law.

                The failure to implement civilian control of police forces undermines the rule of law.

                Law enforcement collective bargaining undermines the rule of law.

              2. Policing isn’t “rule of law”.

                “Rule of law” means laws are written down and everyone — the powerful and the weak alike — must follow them. It is meaningful mostly as a distinction from “rule of men” where a powerful individual or group decides what happens and the consequences and law is whatever the tough guy says it is.

                Your example doesn’t fit “rule of law” and is more about “law and order” — the creation and maintenance of an orderly society.

            2. I have no idea what point you are trying to make.

    2. “rule of law” and “rule of norms”

      Law is a servant, not the master. The phrase grates on me every time.

      Norms, in politics, are mainly situational, they just mean “habit” and are usually used to cudgel the opposition into compliance.

  2. Well, here is part of the Amazon blurb for Prof. Bernstein’s book on Obama:

    “Violating his own promises to respect the Constitution’s separation of powers, Obama brazenly ignores Congress when it won’t rubber-stamp his initiatives. “We can’t wait,” he intones when amending Obamacare on the fly or signing a memo legalizing millions of illegal immigrants, as if Congress doing its job as a coequal branch of government somehow permits the president to rule like a dictator, free from the Constitution’s checks and balances.”

    There may be counterparts to this behavior in President Trump’s actions, but I’d like to see them specified.

    1. Robbing the military budget to pay for his border wall after Congress refused to appropriate it directly.

      1. “ROBBING the military budget,” is rich.

        1. Ever heard the phrase “Robbing Peter to pay Paul”?

          Ever heard the phrase “taxation is theft”?

          Looks like not. That’s really rich.

          1. Indeed, you could conduct a perscrutation of Hit & Run the last 14 years and find nary a post in which this Rothbardian ever, even remotely, adverted to the concept of “taxation is theft.”

            1. Lighten up, Francis! Is your humor detector so obsolete that even humor has to pass the politicization filter first?

              1. You calling me old?

  3. “Rhetoric” does not undermine the rule of law any more than unhinged, deranged reactions to that rhetoric.

    Also it’s amazing that you still talk seriously about “norms” after almost all the people complaining about “norms” spent four years acting like children and making up stories about bogeymen to explain their emotional breakdowns. It’s as if you don’t understand that (double-) standards exist to tie your hands while leaving the opposition free to act however they wish.

    This is where conservatives are like the British Redcoats lining up in shooting formation in the middle of the road and getting massacred by the Americans from the relative safety of the forest to the right and left of the road. It keeps happening over and over, but some conservatives are content to adjust their bow ties and continue to play-act while their country is taken over by totalitarians and Marxists.

    1. Rhetoric can (read: is) undermine the rule of law more than unhinged, deranged reactions to that rhetoric. The former can (read: is) be implemented under the illusion of reasonable political discourse to convince people, for example, that elections in the United States of America are “rigged” and wrought with fraud. Importantly, that rhetoric I can be (read: is) peddled by people, offices, or institutions that carry at least the appearance of impartiality and importance. The latter is simply discarded or overlooked on its face as deranged and unhinged.

      1. Citing alternate reality or opinion or supposition as fact persuades no one and provides only illusionary basis for a follow-on argument.

    2. Not sure if this is supposed to be a response to the blog post, since Bernstein specifically says he’s choosing to focus on issues other than the rhetoric and doesn’t use the word “norm” anywhere other than the title.

      Maybe conservatives are like the British Redcoats in that a lot of them can’t read very well?

      1. You should read it again. It’s not very long. “Rhetoric” is mentioned directly or referenced in about half of the paragraphs.

  4. Love seeing these serious and reasonable conservatives sticking their heads out to deliver their little lectures on the “rule of law” *just after* the coast is clear and Trump is finished. So brave.

    1. How would it have been dangerous for Prof. Bernstein to “stick his head out” before the coast was clear?

  5. Many US Supreme Court cases:
    include dissenting opinions,
    reverse Supreme Court precedent,
    reverse lower court rulings,
    are reversed by subsequent Supreme Court rulings.

    Please explain your theory of “objective legal experts” in light of the preceding?

    1. Many US Supreme Court cases:
      include dissenting opinions,

      Nice haiku.

  6. “diehard Trumpists” “Trump apologist”

    Ad hominens don’t advance discussion very far. Supporter would have worked well each time.

    I guess I should be relieved “cultist” was not mentioned.

  7. Does it “undermine the rule of law” when governors in their quarantine orders prohibit religious gatherings, but then, when challenged in court, relax their orders in such a way as to moot the challenges? In the somewhat the same way that presidential rhetoric undermines/threatens the rule of law even when no actual transgression occurs, I think the same can be said of threatening to “use” the power of law in inappropriate ways, but then retreat tactically when challenged. Prof. Bernstein’s point is that the principle of “the rule of law” can be undermined in various ways without “breaking” the law.

    1. Great example, perfect really as it’s happening right now and breaking what is arguably the top-dog, alpha law: the 1st amendment.

  8. Was Justice Oliver Wendell Holmes, Jr. an “objective legal expert”?
    “Three generations of imbeciles are enough” that legal expert expertly opined in expertly ruling for forced state sterilization of a “feeble minded” female in Buck v. Bell which remains the case law of our highest court of “objective legal experts”.

    1. It’s an unfortunate feature of our legal culture that every non-mainstream legal argument, no matter how daffy, can be justified as non-frivolous by looking to Supreme Court precedent. “Look at how the “experts” mucked up Buck v. Bell” is the converse [I think, I always get converse, obverse, etc confused] of, “look how the NAACP took a historically ‘daffy’ legal argument that de jure segregation was unconstitutional and made got SCOTUS to accept it.” So, HOW DARE you say that my frivolous lawsuit is frivolous, it’s the next Brown v. Board of Education!

      1. Professor,
        Who decides what is “mainstream” (to follow your non legal and uncommonly common verbiage)? Who are your “objective legal experts” in Korematsu, Justice Black’s majority opinion or the dissent? What would you have written about Korematsu in 1944?
        Your “objective legal expert” today may not be so deemed by you tomorrow, and may never be so regarded by me or anyone else.

        With all due respect, when you revisit your note in 30 years, you may understand why I made my comments.

        1. One of the most embarrassing phenomena of the legal profession is the veneration of Holmes’ Lochner dissent.

          It is long on rhetoric, but short on ratiocination.

          It is a salmagundi of dorm-room generalized asseverations unsupported by facts.

          1. Can anybody translate for an idiot, namely me?

  9. David,

    How would you regard ignoring Congressional subpoenas to testify?

    1. Like Holder?

        1. ^

          We need to fix the oversight power dynamic that is currently tilted way over to the executive. And yeah, Obama didn’t help that.

          1. That pesky Constitution keeps getting in the way.

            1. What part of the Constitution?

  10. Certainly Mr. Obama outdid Bush/Cheney in the department of extra-judicial killings on his sole authority

    1. Unless you count the immigrants that died under Trump’s intentionally punitive conditions.

      1. Trump != Bush/Cheney. Anyway, I counted them. 40 or so died in ICE detention so far under Trump, most of the deaths probably had nothing to do with their conditions of detention.

      2. We are talking about deliberate murder and you know it.

        1. Taking no health measures in these camps during COVID is pretty close to intentional killing, no?

          1. No. And, no health measures? Horseshit. Get out of your in-group.

      3. You are utterly full of shit on this claim.

  11. I am reminded of an adolescent psychology class I took a long time ago. The model described teenagers as bouncing between “legalist” and “constitutionalist” moralities. In a basketball game the “legalist” were more likely to commit fouls if the thought the referee wasn’t looking. The smooth functioning of society depends upon an internalized view of social norms.

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