The Rule of Law?

One of Cassandra's evergreen complaints is that people on the right complain about certain wicked tactics from the left, but then turn around and do the same things when they are in power. Today's example appears to me to be a clear-cut reversal on the duty of an executive to enforce the law, rather than declining to do so when he doesn't care for the law.

I believe the antecedent act was the President's refusal to enforce the Defense of Marriage Act, which went so far as to refuse to defend it in court when people sued to overturn it. Turnabout: fair play?

Democrats who controlled the Legislature in 2009 changed the law so that same-sex couples could sign up for domestic partnership registries with county clerks to secure some – but not all – of the rights afforded married couples.

Wisconsin Family Action sued last year in Dane County circuit court, arguing that the registries violated a 2006 amendment to the state constitution that bans gay marriage and any arrangement that is substantially similar.

Republican Attorney General J.B. Van Hollen refused to defend the lawsuit, saying he agreed the new law violated the state constitution. Then-Gov. Jim Doyle, a Democrat, hired Madison attorney Lester Pines to defend the state.

Walker, a Republican, replaced Doyle in January and fired Pines in March. On Friday, Walker filed a motion to stop defending the case.

“Governor Walker, in deference to the legal opinion of the attorney general that the domestic partner registry…is unconstitutional, does not believe the public interest requires a continued defense of this law,” says the brief, filed by Walker’s chief counsel, Brian Hagedorn.
Now, in fairness, this is an occasion where I think the Democrats are on the right side. I favor the Alabama approach to the question of whether gay unions are "marriage," but this exact approach in how to resolve the question of dealing with just what those unions are. This is exactly what we should do: create a separate institution for non-marriage partnerships that can be judged by its own standards. Thus, if for example adultery should prove to be less of a concern in partnerships containing only men -- as many "same sex marriage" supporters openly proclaim -- we don't end up with a watering-down of the protections against adultery in traditional marriages. (If anything, those are far too watery already.) Let them do the things they want, just keep a distinction so we aren't forced to collapse the categories when we come before courts of law. It's only sensible to believe that the needs of these kinds of unions might come apart, so we ought to have the ability to address that in the law.

Still, whether you're for this or against it, what I want to point out is that it is the same refusal to defend a law that we (rightly, I think) railed about as a failure of duty on behalf of any executive. If you're the chief executive and your oath includes enforcing the laws faithfully, you ought to do that. If you don't like the law, you could always resign and run for the legislature -- or just use the bully pulpit to suggest changes from the legislature. Making law is not your department.

The same issue is about to come around again, regarding this 'executive amnesty,' so it's a good time to decide if there's a principle worth defending here or not.


Texan99 said...

[Comment moved from other article]

Nope, never cared about the principle. I call that a problem with a political solution, as long as the court properly allows another entity to step in an defend the law. I think executives are bound to enforce the law as written, but not spend money fighting about it in court. If it's truly up to the State Attorney General to defend the purity of the state's laws in court, he also has the standing to settle the lawsuit on any terms he finds just, including terms mandated by his contemporaneous (and overriding) duty to enforce the state's constitution and other statutes. Then the state legislature has the obligation to pass laws cleaning up the contradictory mess.

Tom said...

In any sport, when the opposing team first breaks the rules and the ref openly ignores it, it is natural to be angry and speak out against it. But if the pattern continues, if the opposing team keeps breaking the rules and the ref keeps ignoring it, then the rules have changed de facto, and playing by the new, unwritten rules can seem acceptable or even necessary. If cheating wins, then it becomes essential to cheat better than the other team. That is, if winning is important.

That's really, really bad for a society, but it's natural, and I have a hard time blaming anyone for doing that.

E Hines said...

Couple things. From the last link: House Speaker John Boehner, R-Ohio, has a chance to be relevant by pushing a bill that would grant legal status to undocumented immigrants brought here as minors.

Of course, Boehner cannot do this now, even were it an otherwise legitimate thing. To do so would be to acquiesce to and to legitimize Obama's diktat that if Congress doesn't give him what he wants, he'll take it.

The other thing is from CJ William Howard Taft in a related environment: The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

CJ Charles Evans Hughes had much the same understanding: Extraordinary conditions may call for extraordinary remedies. But the argument necessarily stops short of an attempt to justify action which lies outside the sphere of constitutional authority. Extraordinary conditions do not create or enlarge constitutional power.

Both of these were talking about laws passed by Congress, but the concept applies just as clearly to Presidential fiats. And to Article III-made laws, but our judiciary hasn't figured that part out, yet.

But then, these two guys weren't Democrats with a disdain for the impediments of constitutions or laws,either.

Eric Hines

Grim said...

The problem is one of stability. Let's say we universalize this principle: when any Republican wins the Presidency, all liberal programs cease being enforced, and no liberal law is defended before a court. As soon as Democrats win power, vice versa.

So the laws effectively change the minute we have a Presidential election in which the party in power changes. The incoming Congress can only make new law if they also have a President who agrees with them: Congress becomes effectively a subordinate branch to the executive, not a co-equal branch. The judiciary's power is much reduced as well, as it will hear complete arguments only in cases when the executive supports the law. It's free to decide what it wants, but many times a law that was duly passed will be defenseless before the court.

So what about the people? Their direct representatives are not empowered; their direct referenda can be ignored by a hostile executive, which will then refuse to defend them (as in California), and while the judiciary still has some role, it's reduced in legitimacy if they are only presented one side of the argument.

Seems like there's a problem here for our system of government's checks and balances. I submit it may be an important principle.

Tom said...

Yes, a very big problem. The system itself becomes illegitimate.

But the system is already illegitimate if one party repeatedly gets away with this sort of thing, and the fact that one side has to follow much stricter rules than the other means it will lose, sooner or later, and the cheating side will gain permanent control. I think this is what has happened in Europe.

The best thing to do is begin holding the left accountable again, but they have played this nation brilliantly. They have majority control over almost all of the agents of accountability in our society: the judiciary, bureaucracy, media, education, entertainment industry, etc. There is little we can really do right now to hold the left accountable.

So we have a choice. Do we keep trying to fight a good boxing match while the left fights like it's an MMA cage fight, or do we recognize it's an MMA cage fight and act accordingly?

Tom said...

Or, do we make our best effort to recapture some of the agents of accountability and hold on to the boxing rules until we make it? If we make it?

E Hines said...

It's far from over. Republicans and Conservatives control the large majority of the state and local governments--where the grass roots are sown.

It's a prolonged fight. We just need to lose the impatience.

Eric Hines

Grim said...

There's a chance you could turn integrity into an electoral, as well as an actual, virtue.

Cass said...

A few points:

1. Legislators do not have legitimate authority to pass an unconstitutional law. If a law is in fact unconstitutional, the Executive does not have to defend it or - I would argue - enforce it either.

The problem with what this administration is doing is that they haven't (to my knowledge) claimed the laws they decline to enforce violate the Constitution. Instead, they simply assert they will not do the job they were elected to do without so much as a bare thread of legal justification. It's a naked power grab, which is not nearly as fun as it sounds.

2. Refusing to enforce a constitutional law and refusing to defend an unconstitutional law are not the same thing (and thus aren't rightly compared).

Whether or not this particular law IS unconstitutional, I do not know. But I don't believe the executive branch is obligated to rigorously defend a law it considers unconstitutional in court. The legislature is then free to sue the executive (in court) to get a ruling on whether the law or the executive's refusal to enforce that law, is in fact, unconstitutional. And if that ruling goes against the executive (the law does not violate either the state or federal constitution), then the law should be enforced.

3. I'm not a fan of the "they did it first/two wrongs make me right" line of argument.

The entire point of the rule of law is that it CANNOT be arbitrarily redefined by men. "If I can find an example of someone violating the law, that excuses *me* from following it" is nothing more than rationalization.

Laws are never followed perfectly or uniformly.

If all it takes to invalidate the law is a few cases where the law was not followed, all laws are invalid and anyone may freely violate them at will.

No one ever said upholding the rule of law was easy, or that we'd always win, or that people wouldn't be able to abuse the system. All of these things have happened throughout history and will undoubtedly continue to occur for as long as people are jackwagons (IOW, forever).

Law is a framework wherein manifestly imperfect people can resolve disputes without descending into 7th Century barbarity. Not all disputes are resolved satisfactorily or justly because human beings are often venal, corrupt, and self serving. The efficacy of law is that - in the main, it works, albeit with many unfortunate exceptions.

When we can go out of our homes and offices and places of business without fear of daily violence, when we see the vast majority of people able to resolve disputes and live in peace and prosperity, then we know the rule of law is working.

Imperfection does not wipe out the millions of daily success stories.

Grim said...

I'm not sure I understand the distinction you're trying to raise in points (1) and (2). It sounds as if you think there is possibly a greater duty to enforce the law than to defend it in court, though you're prepared to argue that neither duty exists. But then you say that it's not proper to compare the two duties, though I thought you just had! It sounds like you want to say that they're both duties that can be obviated by unconstitutionality.

So, which of the two duties do you think is more binding (potentially, given that you're ready to argue for both being nonbinding)? What's the ground for this distinction?

I would have thought that the duty to enforce the law was the one that would come apart first, since enforcing an unconstitutional law means doing positive harm to individuals. Even if you refused to enforce it, you could still perform the intellectual exercise of being 'the Devil's advocate' in front of the court (perhaps with a note to the effect that you thought the law was unconstitutional, but were intent on performing your duty to give it the best advocacy possible).

Cass said...

I could be convinced I'm wrong about this (haven't had time to think it out or do any reading on the subject), but it seems to me that if the law is obviously unconstitutional - IOW, this isn't an angels-dancing-on-pins objection - then there's no duty to either enforce OR defend it in court.

The remedy for that refusal is impeachment or a lawsuit.

I do think there's a greater duty to enforce a law than to defend it in court. The law is published so that people will know what it is. If there's a duty to do either (enforce or defend) then the greater duty would be to enforce. If the law is void from the get-go, no duty exists.

FWIW, I think these cases are probably both rare, which doesn't make this a great excuse for the executive.

By "compare", I meant "conflate" - that was not terribly clear. I don't think they're the same thing, and meant that one shouldn't compare a failure to enforce with a failure to defend as though they were the same offense.

There's a higher duty to enforce/defend the Constitution than to enforce/defend ordinary laws because the Constitution supercedes regular laws. That seems pretty logical to me, but maybe I'm wrong.

This is merely my uninformed opinion, as again I haven't had time to read up on this, nor to think it through carefully.

The problem here is that not all laws ought to be defended/enforced with exactly the same vigor. There is some leeway for an executive to apply judgment as to priorities. We want bright lines, but there aren't many in real life.

Texan99 said...

I agree with Cassandra except on one point: I don't think the executive's proper response to an un-Constitional law is self-help. I think the law should be executed like other laws unless and until someone gets a court to rule it un-Constitutional--a process the executive can legitimately cooperate in, or at least be neutral on.

The executive does have some discretion about which laws to pour its most effective resources and attention into, but it ought to be very careful about letting those decisions line up on political issues. Much better to get the law changed or ruled un-Constitutional first if it's a big deal rather than a simple question of priorities.

Tom said...

3. I'm not a fan of the "they did it first/two wrongs make me right" line of argument.

Some people make that argument, but it's not the one I'm making.

Let's take it out of the boxing ring and move it into contracts. The rules are a contract between two parties, and if one party violates the contract, the other party is no longer bound by it.

The party that breaks the contract is morally culpable, but once it's broken, the other party is morally right when they do not fulfill their part of it.

Texan99 said...

But this isn't a duty arising out of a contract between Republican politicians and Democratic politicians. Both of them owe duties to the citizens, who didn't breach anything.

There's something to be said for this argument in the context of tactical measures like the filibuster, which really are agreements between parties.

Cass said...

I agree with Cassandra except on one point: I don't think the executive's proper response to an un-Constitional law is self-help. I think the law should be executed like other laws unless and until someone gets a court to rule it un-Constitutional--a process the executive can legitimately cooperate in, or at least be neutral on.

I think it depends on how clear the violation is. Example: Congress passes a law that clearly (not possibly) violates the Bill of Rights.

In this case, I think the Executive branch has not only the right but an absolute DUTY not to enforce that law. The branches are co-equal, and can (rarely) outright defy each other, but at the risk - in this case - of possible impeachment.

This is a very dangerous remedy, and ought to be used only in emergencies and only with the clear understanding that one may have to suffer the consequences.

Tom, I don't agree with your contract analogy. Laws aren't anything like contracts (they are not voluntary agreements that must be supported by consideration from both parties to be enforceable), and malfeasance by government does not invalidate the law.

Individuals do not have to agree to laws (nor are they only enforceable if the government gives us something in return for our compliance). We speak of a social compact, but that compact is a very different one from a contract.

Cass said...

There's something to be said for this argument in the context of tactical measures like the filibuster, which really are agreements between parties.


Tom said...

Going back to John Locke (Two Treatises of Government), our system is based on the idea that the people and the government have a contract (it's even called Social Contract Theory). If the government fails in its part, the people do not have to obey the government and may even revolt and set up a new government.

That's one of the principles our nation was founded on.

It is bluntly stated in the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

This was not a call to peacefully work within the system and follow the British rules to effect change. This was the conscious prelude to bloody revolution. This was intended very literally.

I am not calling for a revolution. I think we can and should strive for peaceful change until that is impossible. But it is very much a social contract.

Cass said...

The Declaration nowhere provides for (or attempts to justify) the unilateral invalidation of individual laws by citizens, but rather states that if an entire government becomes destructive of the ends for which it was originally formed, the People are entitled to abolish it and create another.

That's a very different thing from declaring that because someone broke a law and got away with it, you don't have to comply, either.

Grim said...

The concern about universalizing the principle is that it does seem to mean that the government becomes invalid on Tom's terms, though. It's dangerous to do it once; it's much more dangerous to accept that it's now part of the game.

You know I'm a huge fan of the idea of citizens' resisting unjust laws in order to pressure the government into changing them. I'm just not sure that the locus of that power to defy the law ought to be the governor's mansion (or the White House).

Tom said...

I have never argued that. My emphasis has been on a repeated abuse of the laws that the government does not stop or correct, not one person breaking one law one time.

Also, while the Declaration doesn't defend individual acts of non-compliance, it doesn't condemn them, either. The entire period from 1764 to 1776 saw many colonists refusing to comply with and actively resisting and subverting British laws they believed to be unjust. It is the same spirit that motivated Martin Luther King, Jr., although he didn't tar and feather anyone or destroy private property, unlike our colonial ancestors.

It may be easy to look at one violation and believe it is an isolated event, but I believe this is part of a pattern of abusing the social contract, so my reaction is to the pattern of events, not to this one event alone.

Tom said...

Sorry, my reply was to Cas.

Texan99 said...

Cass, I honestly think the executive's duty is to hotfoot it to court and seek a TRO followed by an injunction. As long as the law is on the books, it's not a good idea to treat it as if it already had been stayed, just because we're sure it should be stayed.

If the executive can't find a court to grant an injunction--and that should be available on a few days' notice if the case is that strong--then he should resign in protest. Or, I don't know, start a revolution.

Grim said...

I suppose the pardon is a similar case. Its intended function is to recognize exceptional cases when the law as written really shouldn't apply. However, it's not formally limited: a President could choose to pardon every offense against Federal law in a blanket way. A governor could set aside the entire law, and even the state constitutions, by the same power.

That's a great reason to say that executives should not operate on the principle of defying laws with which they disagree. The powers invested in the office would be destructive to the whole system of government if they come to be used in that way.

Tom said...

Grim, I agree with your concerns and I've said above that it's bad for a society. So is one side being allowed to break the rules with impunity while the other is held strictly to them. Both are dangerous. Maybe you go to political war with the branch you have.

And maybe Hines is right that we will eventually correct this through the election process -- I'm all for that, and that's what I will work for. That's my answer, too, even though I seem to be more skeptical that it will work than he is.

And maybe Grim is right that showing virtue may become an advantage in itself. That would be great, though I am skeptical that the average American even knows what justice is anymore he and she have been so indoctrinated with "social justice."

But what I see is a long term pattern of abuse and corruption of the system across the board. The system is not working as intended because of that corruption, and the government has been used repeatedly to shred the very rights it was instituted to protect, and no other part of the government is stepping up to check the abuse. I see the social contract as already broken, and the issue in this post is, as I see it, a result of that brokenness.

Cass said...

Cass, I honestly think the executive's duty is to hotfoot it to court and seek a TRO followed by an injunction. As long as the law is on the books, it's not a good idea to treat it as if it already had been stayed, just because we're sure it should be stayed.

My ignorance of law informed my prior comment - if there's a better remedy available then I agree it should be used first. I really do think of refusal to enforce as a last resort to be used only in extremis.


Nothing I've seen these days seems categorically worse than countless abuses that pervade every American history book. Which is not to say we should tolerate abuses of power.

But I can't buy into the notion that if abuses take place, joining in and repeating the abuse is the right remedy.

E Hines said...

I honestly think the executive's duty is to hotfoot it to court and seek a TRO followed by an injunction.

The Founders, as they conceived the three branches as equals with separated powers, considered each of the branches individually as well as collectively to have an equal duty to uphold the Constitution, including at the expense of laws any one of them considered unconstitutional (and as soon as I find the the reference I'm trying to remember, I'll post it). Congress satisfies its duty by not passing the law in the first place. A President satisfies (mostly) his duty by vetoing it. The Supreme Court satisfies its duty by ruling on the law's legitimacy vis-a-vis the Constitution. In this regard, a President who considered a law unconstitutional was duty bound not to enforce it or defend it. Of course, he was on firmest ground when his veto statement said, "It's unconstitutional," and Congress passed it over his veto. He's on fairly firm ground on his statement "It's unconstitutional" in his decision not to enforce/defend a law passed during a prior administration.

In either of those cases, two things exist, it seems to me. On the one hand, it becomes a legal question to be settled by the Supreme Court. But it also remains a political question to be settled between the Legislative and the Executive Branches, and ultimately by the people in subsequent elections.

None of this exists under the present administration.

Eric Hines

Cass said...

Eric has nicely outlined something I was struggling to express, partly through lack of time/attention and partly because it's not simple, with clear, bright lines: not every problem with government can be addressed through broad rules or maxims.

This is why we have courts, and judges who interpret vaguely written laws that can't possibly spell out duties, rights, or legal principles in enough detail that it's obvious when or how they apply across a broad spectrum of situations.

We talk a lot about how to change the structure of government, as though that structure were primarily the problem. And structure *is* important: there must be enough of it to allow the moving parts of an increasingly complex and heterogeneous society to work together without jamming the machinery, but not so much that it stifles enterprise.

But the root cause of all our problems is human nature. That is never going to go away, and we are always going to have the same problems, presented in differing permutations as conditions change. If we overthrew our own government tomorrow, that same human nature that causes us so many problems now would still be present (and troublesome). And we'd still be presented with an endless train of abuses and transgressions that we'd have to figure out how to deal with.

I sometimes think all this wondrous information we're surrounded by 24/7/365 gets in our way and prevents us from seeing things clearly. The past looks simpler b/c we're not living in it, but all one has to do is pick up a history book to see how common gross injustices were (and how difficult they were to remedy, even then).

But things that can't go on forever generally don't: at some point there's a tipping point and a correction. We're seeing that happen with the White House's meddling on the so-called campus sexual assault, and on their serial prevarication about the nature of radical Islam.

By the way, great piece on my fave SC justice by Juan Williams in today's WSJ. Nice to see Justice Thomas get his due.

Tom said...

But I can't buy into the notion that if abuses take place, joining in and repeating the abuse is the right remedy.

Neither can I, of course. However, when the rules change, as I believe they have, the way we play the game should also change. Playing by the rules, even if we disagree with the way they were made, is not abuse.

Cass said...

Tom, if I accept your formulation (I don't, but that won't surprise you) then rules are made, but individuals can freely redefine the rules at any time, simply by refusing to follow them.

In this context, rules are useless: they have no binding force.

You seem to be arbitrarily defining "the rules" to mean, not what was written and voted upon and codified into law, but something more akin to "prevailing practice". And even in this case, I"m not sure I"d agree that a few violations are equivalent to prevailing practice.

That's just too shifting a standard for me - it's the rule of men, not the rule of law.

Tom said...

I"m not sure I"d agree that a few violations are equivalent to prevailing practice.

Oh, I entirely agree. A few violations wouldn't be.

I understand you don't believe it goes beyond that, but my point repeatedly has been that I believe it has gone WAY past a few violations. I believe the system itself is broken -- that's not a few bad actors, a few violations, in some sort of very limited, aberrant situation. I believe the system itself has become thoroughly perverted and no longer serves the rule of law.

I'm not asking you to agree that that actually is the case, but if you do not address the fact that I do believe it to be the case, you are ignoring the central point upon which my argument rests.

Cass said...

I'm not asking you to agree that that actually is the case, but if you do not address the fact that I do believe it to be the case, you are ignoring the central point upon which my argument rests.

FWIW, I wasn't disputing that you believe this to be the case. Only that I think you're wrong about that, for the reasons I've cited (namely, that if you're right and the threshold is this low, then our government has NEVER had any legitimacy, as I don't believe people have ever consistently followed the rules).

Hence my point that government provides a framework, through which we address disputes. It doesn't prevent them from happening in the first place (any more than murder or rape statutes prevent violent crime). It only provides an alternate remedy - and one that is not always effective even after the fact.

People get away with murder and rape. They get away with malfeasance in public office. But I do not believe the right remedy is to conclude that the standard - that we should not murder, rape, or commit malfeasance in public office - is wrong and that violations of that standard should not be punishable under law.

IOW, two wrongs don't make a right. Nor do a thousand murders make murder right, or a thousand unpunished instances of corruption in public office make corruption right or excusable.

Tom said...

Whenever you say or imply I'm using a low threshold, you are creating a strawman for yourself and refusing to deal with the central point of my argument.

Here, let me illustrate. If I treated your opinion as you are treating mine, I might say something like this:

"Well, Cass, I'm afraid I can't excuse the Holocaust just because it was legal. At some point, the government becomes illegitimate and resistance becomes justified."

Woah. Wait a second. That's not even close to resembling your opinion!

Just like when you say "if you're right and the threshold is this low," it doesn't resemble my opinion at all. Right there you stopped talking to me and started talking to a strawman who, unfortunately, appears to also have the name 'Tom.'

Tom said...


In thinking about this, maybe I have been doing the same thing to you.

I don't know. I'm late for lunch, so I'll come back and re-read things later. I just really feel like we're talking past each other instead of engaging each other.

If I have been doing that, I sincerely apologize.

Tom said...

Cass, I think I have been doing what I accused you of. I do sincerely apologize.

It was frustrating for me, so I assume it was for you as well. I'll work on this and try to avoid doing it in the future.

Also, it's Lent, and so a season for me to be examining my own myriad faults. The Lord knows I need the whole season and then some; I have no time to spare for trying to find fault with others.

Let's pick this topic up again when I have my head on straight.