Watched by Vice President Mike Pence, US President Donald Trump shows an executive order on immigration which he just signed in the Oval Office of the White House on June 20, 2018 in Washington, DC. - US President Donald Trump on Wednesday signed an executive order aimed at putting an end to the controversial separation of migrant families at the border, reversing a harsh practice that had earned international scorn."It's about keeping families together," Trump said at the signing ceremony. "I did not like the sight of families being separated," he added. (Photo by Mandel Ngan / AFP) (Photo credit should read MANDEL NGAN/AFP/Getty Images)
Administrative State

Trumping the Rule of Law


- June 21st, 2018
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The outrage over the “crisis at the border” raises a question about the principles of NeverTrump conservatives. They whine about President Trump undermining or attacking legal norms and institutions practically on a daily basis. Now they want him to change the law unilaterally or ignore it outright.

On the surface, these “principled conservatives” have few principles. But they do. They even have “conservative” principles. They’re just not the principles of free government. In the end, the current immigration drama highlights one of the most important principles of American government: the rule of law.

Let’s start with the issue at hand: separating families. Plenty has been made about whether what we’re seeing is or is not a new policy. The simple answer is, it isn’t. The Trump Administration earlier this spring imposed a new “zero-tolerance policy” for illegal border-crossers, but it has nothing to do with parents and children directly. It simply states that to stop illegal immigration, all immigration laws must be enforced strictly, including the provision that criminalizes illegal entry. This ends the “catch and release” policy of not really enforcing certain laws for those with kids in tow—a loophole that is abused regularly.

As a result, with some other steps in between having to do with asylum claims (laid out well here by Rich Lowry), the so-called Flores decision, and unpopular family facilities already filled, the law that requires children to be held while criminals are sent to jail becomes more apparent. As Homeland Security Secretary Kirstjen Nielsen clearly explained, children are not being “ripped” from their parents’ arms and what is happening is not new.  

Trump is Not Caving
There is a lot of  gaslighting and emotion surrounding this story, mostly having to do with fake news, using children as political weapons, and confusion surrounding the difference between “policy” and “law.” As a result, many people are clamoring for President Trump to issue an edict to change the law. Some people are calling for Trump to stop enforcing immigration law again. Others want Trump to issue a decree to ignore the law and court orders that govern how children of illegal aliens are treated when their parents (or the adults they happened to arrive with) are detained.

In any case, a great many editorialists and cable news talking heads want Trump simply to ignore the law by decree. The dilemma seems to boil down to three options: ignore the law and embrace open borders; ignore the law and send kids to prison with their parents; or follow the law.

Trump’s position has been: we’ll follow the law until Congress changes it—that’s their job. His job is to enforce the law as written. On Wednesday,  he issued an executive order saying the same thing (it is titled “Affording Congress an Opportunity to Address Family Separation”). In it, he doubled down on the zero-tolerance policy, directed the Department of Defense to assist by establishing hasty family facilities (thus getting around authorization and appropriation problems), and directed Attorney General Jeff Sessions to request a more helpful ruling from the courts in the Flores case.

This has led to more complaints about Trump caving or changing his position (Thomas Farnan argues elsewhere at American Greatness today that the president caved in order to retreat to higher ground.)  But I don’t buy that line. The executive order may result in no change at all, but it appears to be entirely legal. If and when a court strikes down the order or it does not yield satisfactory results, Trump can say with greater force: “See, I told you so. This is Congress’s problem. Only they can fix it.”

What is the Rule of Law?
So we come to the phrase the rule of law. On the off-chance some NeverTrumper afflicted with late-stage Trump Derangement Syndrome should read this, I’ll review. The “rule of law” does not mean simply “the rules of the law,” though that is a part of it. It means the law rules, as in, instead of men ruling, the law rules.

The thinking goes something like this: since men are not angels (see Federalist 51) and because no men are born with the innate authority to rule over other men (“the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately . . . ”), government is both necessary for human life and also something that cannot be trusted to men simply (back to Federalist 51). The law must rule over government and governed alike, and it must be based on consent.

One element of the “new science of politics” is the separation of the powers of government into three branches to establish a just regime. This way, no single group in government actually controls the law. The law remains above all. As James Madison reminds us, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”

Thus men are ruled, but not by other men. They govern themselves in a way that is better than either the tyranny of anarchy or the tyranny of being ruled by other men against their consent.

The rule of law, or the law ruling, requires a few parts: first, the law must be short enough and clear enough that all men can know and understand it (and thus willingly comply). Admittedly this is a problem today, but we are working on it.

Second, it must be applied as written to all people equally. If it isn’t, then you really don’t have the law ruling; you have some people using the law to rule others. Again, we’re working on it.

Next, legitimate law requires the consent of the governed—it must be made by legislatures who are accountable to the people—and executed by other people who are also accountable through free and fair elections. We’re working on that, too. (Maintaining free and fair elections is really what this immigration imbroglio is all about.)

Finally, law must be adjudicated by an independent judiciary—meaning a judiciary that is independent of the other branches.

Conserving the Wrong Tradition
Surely most readers here understand this. I don’t mean to insult anyone’s intelligence. Frankly, it does my soul well to recount it, and I think it does most people well to review it. As Hillsdale College President Larry Arnn has been hammering of late on the Hillsdale Dialogues, “This stuff is important!” And it bears repeating often because many people—especially “conservative” people—do not really understand it properly.

Instead, most of the NeverTrump Right, to say nothing of the Left, have an upside-down understanding of the rule of law upside down. They are “conservative” in this respect, since the legal norms and traditions have been wrong for quite some time. Ever since the Progressives began transforming government more than a century ago, all of this has been in question.  

The Progressives don’t start from the same principle, so they understand the rule of law differently. Instead of the consent of the governed as the basis of rule and the securing of rights as the purpose, Progressives hold that expertise is the basis and progress the purpose. They reject the separation of powers because it slows down the rule of experts. And to progressives, the rule of law is the rule of expertise or a law made by experts.

Likewise, the independent judiciary is not the independence of the courts from the prosecutors and enforcers; it is the independence of courts and law enforcement—the independence of the administration of justice by experts—from elections. Elections are political; governing is administrative. The two must be separate for the sake of “efficiency.” Everything boils down to proper administration, and the rule of law is the same thing as the rule of the administrators.

Since the rise of the administrative state, the idea that experts or the president can make law simply because someone thinks it’s the right thing to do, regardless of deliberation or consent, has become the norm. Even supposedly conservative lawyers and scholars can find ways to stretch and torture the text of the Constitution to justify law by presidential edict—though often they no longer even bother to do that. To many Americans, the “rule of law” means the rules that a credentialed elite makes to rule the rest of us. Their rule is the rule of law. And Donald Trump poses a threat to that way of thinking.

Congress Needs to Reclaim Its Authority
In enforcing the law at the border, and strictly interpreting the law governing illegal alien parents and their children, President Trump is restoring the rule of law.

The law cannot be said to rule if it is not enforced. And it cannot be said to rule if it is not made or changed by a legislative body. In his demands for Congress to change the current immigration law, Trump is choosing the rule of law over his own rule. He appears to have republican principles as one who believes in government “of the people, by the people, for the people.”

Again, it is not that the NeverTrump Right has no principles. It is that it has and seeks to conserve tyrannical principles and their rule over and against the rule of law. The problem for them is that President Trump is standing up to them against this and they’re angry about it. The two are in a great struggle, what Lincoln described as “the eternal struggle between these two principles—right and wrong—throughout the world.” The rule of supposed elite, masquerading as experts, is of “the same tyrannical principle.” For those of us on the other side, understanding the rule of law is essential.

Photo credit: Mandel Ngan/AFP/Getty Images

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