We have heard much in recent times about the rule of law. Everyone seems to be in favor of it. Everyone seems to think that those with whom they strongly disagree are violating it. Let me remind you of a few examples.
President Obama, frustrated by Congress’s failure to adopt immigration reform, stated at a cabinet meeting that he still had a “pen and a phone.” He proceeded to announce a policy called DACA, short for Deferred Action for Childhood Arrivals, which effectively adopted a type of amnesty for some 700,000 persons who had arrived in the country as children without legal authority. This was denounced by political opponents as “executive legislation” and a violation of the rule of law.
His successor, President Trump, accumulated a record of sorts for being charged with flaunting the rule of law. To cite just one episode, he demanded that Congress appropriate funds for construction of a wall along the border between Mexico and the U.S. When Congress enacted an appropriations bill that specifically excluded any such appropriation, Trump refused to sign it, triggering a 35-day shutdown of the government. Trump eventually relented, but instructed subordinates to scrounge for other pots of money to build the wall. One identified source was Section 8005 of the Defense Appropriations Act of 2019, which authorized the re-transfer of up to $4 billion in Defense Department “working capital funds” based on “unforeseen military requirements,” as long as transfer of the funds had not been “denied by the Congress.” The Sierra Club obtained an injunction against this use of these funds, which was hailed by leading Democrats as a vindication of the rule of law. A divided Supreme Court stayed the injunction, noting that the government had made a “sufficient showing” that the Sierra Club had “no cause of action to challenge compliance with Section 8005.” So construction of the wall was allowed to proceed, until the Biden Administration brought it to an end.
Not to be left behind, President Biden has also been condemned for lack of fidelity to the rule of law. As part of the federal response to the COVID pandemic, the Centers for Disease Control ordered a nationwide moratorium on evictions of tenants for nonpayment of rent. This was later ratified and extended for a short period of time by Congress. As the expiration of the moratorium approached, the CDC decided it could extend the moratorium without additional congressional authority, based on a 1944 statute that authorized it to issue orders for fumigation, pest extermination, and “other measures, as in [its] judgment may be necessary” to prevent “sources of dangerous infection to human beings.” When the Supreme Court, acting on a stay application, expressed skepticism about whether the statute authorized an eviction moratorium, the Biden Administration asked Congress to enact emergency legislation extending the moratorium. But when Congress failed to act, the CDC extended the moratorium anyway. Speaking to reporters, Biden admitted that the extension order was on shaky legal ground, but he said it was worth doing because “by the time it gets litigated, it will probably give some additional time.” This too was decried as a violation of the rule of law, as the Supreme Court effectively held when the issue returned on another stay application.
As these examples suggest, recent Presidents have become increasingly bold in taking action that has not been authorized by law or is at best only dubiously authorized by law. The examples also reveal that political opponents of the President have not been shy about condemning these actions as violating the rule of law. These and other episodes suggest that the idea of the rule of law is centrally concerned with the understanding that the executive must confine its actions to what is authorized by law and must abide by the limits prescribed by law.
Law | Rule of Law
Thomas W. Merrill,
The Essential Meaning of the Rule of Law,
J. L. Econ. & Pol'y
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3897