For weeks Americans have been debating whether we’re facing a constitutional crisis. My answer, for the record, is that we are.
But perhaps more than a constitutional crisis, we’re in a rule of law crisis. And while the courts are caught in the middle of this crisis, it’s not something they can adequately remedy.
The basic proposition of the rule of law is that we are a society of laws, not of men. Government actors must wield their power consistent with rules that are known in advance, so people understand what’s expected of them and what consequences will attach to particular actions.
It also demands that government officials take action based on what the legal philosopher Jeremy Waldron recently described as a set of “public norms” rather than “on the basis of their own personal or political preferences.” It requires what the scholar Lon Fuller called “generality” — the equal application of the law — and it demands accountability by those in power when they are found to have taken unauthorized action or exceeded their authority.
Many of the administration’s actions in the first 100 days of President Trump’s term violate core principles of the rule of law — most notably in the administration’s almost gleeful lawlessness in response to its mistaken deportation of Maryland father Kilmar Armando Abrego Garcia, but also in its elimination of funds in violation of numerous statutes passed by Congress, mass firings of both high-level officials and civil servants and the targeting of perceived enemies in cartoonishly unconstitutional orders. While these actions are inconsistent with core rule-of-law principles, they may also violate specific provisions of the Constitution.
The Constitution sets forth particular requirements: Laws must be passed by Congress and signed by the president or over a veto; the president shall “take care” that the laws are faithfully executed; no person shall be deprived of life, liberty or property without due process of law.
Those aren’t self-defining terms or phrases, and there’s much room for interpretation and application. But they impose a set of obligations and create a set of rights that all government actors are obliged to respect.
In our system, courts have come to serve as key guarantors of those rights. But courts, in particular federal courts, are limited in both power and reach. They are by design slow and reactive. They are not self-starters: They can rule only in cases properly before them, which means there needs to be a party experiencing a particular injury that is continuing or will imminently occur and that the judicial process can remedy.
Courts typically confront cases raising discrete questions, meaning there’s an atomistic nature to constitutional law and constitutional adjudication. Courts have also devised an array of doctrines identifying spheres in which they will be reluctant to rule or to rule in too directive a fashion: Most relevant here are cases involving sensitive questions regarding the president’s conduct of foreign affairs and diplomacy (as in the Abrego Garcia case, which involved dealings with El Salvador), where courts typically give executives very wide berth.
These various screens prevent courts from reaching every legal question. They also mean that courts cannot generally protect against unlawful conduct before it occurs, and they are often limited in what they can do after the fact. They can and they should, as in the case of Mr. Abrego Garcia, seek to finish superintending his return, in part by requiring the executive branch to fix its egregious error. But they cannot act as roving guarantors of the rule of law.
As more challenges to the administration’s actions arrive at the Supreme Court, the administration will likely notch some wins and some losses. The court will be asked to answer specific questions in each case: Does the Impoundment Control Act invade presidential prerogatives? Does the clause of Article II vesting “the executive power” in the president mean that the president must have complete control over all subordinate officials, so that efforts to limit his ability to fire at will are not permissible? Do the guarantees of the First, Fifth and Sixth Amendments protect law firms from targeted attacks? Does anything in the text or history of the 14th Amendment allow the president to deny U.S. citizenship to children born in the United States to parents without legal status?
Whatever happens in these cases, the possible inability of courts to provide redress doesn’t relieve other officials in government of their obligations to the rule of law. Regrettably, high-ranking executive branch officials in this administration have given no indication that they intend to adhere to that obligation.
But other officials can — like the Justice Department lawyer whose concession of the government’s error in the Abrego Garcia case has been critical to the litigation success Mr. Abrego Garcia has had, and who was evidently placed on leave and then terminated for having the temerity to adhere to duties to both the court and the rule of law.
Other Justice Department lawyers should follow his lead. Perhaps U.S. Court of Appeals Judge J. Harvie Wilkinson III had such actors in mind when he wrote, in Mr. Abrego Garcia’s case, of the hope that “it is not naïve to believe our good brethren in the executive branch perceive the rule of law as vital to the American ethos.”
Members of Congress, too, should use their platforms to seek information and keep attention trained on the administration’s trampling of the rule of law, as Senator Chris Van Hollen of Maryland did when he traveled to El Salvador to seek contact with his wrongly deported constituent. They should also use their power over the executive branch, from funding to personnel, to compel compliance. And in the face of flagrant violations of both the rule of law and specific provisions of law, they should consider impeachment.
Members of the public, too, should continue to push the administration to comply with court orders and with the rule of law, as did attendees at an Iowa town hall who recently shouted down Senator Chuck Grassley over his failure to stand up for Mr. Abrego Garcia and for the rule of law. And institutions of civil society should stand up for the rule of law, as Harvard recently did when it announced that it would not comply with demands from the administration that would undermine academic freedom.
Governing within the rule of law should not be optional, something to be applied when it is convenient and ignored when it is not. The rule of law is not necessarily easy, since it contains difficult questions of both theory and application — but that is what makes it so critically important, and its absence so dangerous.
