Many people are concerned about Donald Trump’s commitment to the rule of law, a concern I share. But the other choice in this election is a Progressive one, and Progressivism by its nature lacks that commitment. Moreover, its history shows that it permanently damages the constitutional foundations of the United States. And the United States suffers from the fevers of progressivism more than any time since the 1960s. Thus, this election pits a candidate lawless by virtue of temperament against one lawless by virtue of ideology and emboldened by the spirit of the times. The rule of law is under threat, whoever wins.
Progressivism has proved a greater long-term danger than any single individual, because it is born in part out of systematic rather than personal hostility to the Constitution. Federalism and separation of powers are obstacles to the social engineering at the heart of progressivism, and thus progressivism has tried to eviscerate these restraints. Packed with FDR appointees in the 1930s, the Supreme Court gutted the enumerated powers. The administrative state has eroded the separation of powers, making the executive ever more powerful in domestic affairs. The theory used to justify these departures from the original constitution, living constitutionalism, is itself a threat to the rule of law, because it devalues the formal rules laid down by the Constitution.
And today we see all across a society a renewed progressive disdain for the rule of law. President Obama has acted lawlessly again and again to advance its signature program of social engineering– Obamacare. Take two recent examples. In response to a complaint by the House of Representatives, a federal judge stated that the President was funding Obamacare insurers without an appropriation from Congress. While there are serious arguments that the House lacks standing to bring this suit, there are no plausible defenses of the substantive merits of the spending. Obama’s administration was flouting the law in hope that there would be no remedy. His administration also by regulation purported “to amend” the Affordable Care Act to eliminate fixed indemnity insurance as an option to satisfy the obligation to purchase insurance coverage. The District of Columbia Circuit recently held that the administration had no authority to go against the plain language of the statute which specifically permitted these plans. To be sure, most Presidents have on occasion tried to exploit gray areas of the law. But these actions are plain violations. The only real defense is a familiar progressive one: the end justifies the means.
That argument is made more explicitly in others instances where Progressives celebrate law and norm breaking. Justice Ginsburg criticized Donald Trump in violation of long standing norms of judicial conduct. Some of her supporters justified this action on emergency grounds: Donald Trump is a danger to the republic and must be stopped. The difficulty with this argument is that an emergency is almost always present for Progressives. That is how many justified flouting the Constitution during the New Deal, as when the Court ignored the clear language of the Contract Clause in Home Building and Loan Association v. Blaisdell.
The Democrats recently shut down the operation of the House of Representatives because the majority would not bring up a bill they wanted to enact. Of course, the House majority enjoys the right to decline to bring up legislation, and when in power the Democrats have exercised that right many times. But once again the end justified the lawless means. And the end here is hardly momentous—a slight revision of gun laws that would have marginal effect even on the Democrat’s own premises.
No one should be sanguine about Donald Trump’s commitment to the rule of law. But we know that the progressivism has no such commitment. And, unfortunately, progressivism will remain long after Donald Trump is retired from public life.