The Volokh Conspiracy

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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.


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.