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The President’s Conduct Is No License for Others’ Unlawfulness

On this President’s Day there is a lot to criticize about the behavior of our current President.  Although other Presidents have certainly not conducted themselves with dignity (think Bill Clinton), President Trump’s demeanor and decorum during his news conference was more a throwback to his days as a reality TV star than a performance befitting a head of state.  Presidential dignity promotes the stability of our union.

And while other Presidents have told more consequential falsehoods (think “If you like your plan you can keep it”), few have made statements that are so transparently false at the time they are made, such as the President’s claim about the relative strength of his electoral college victory. Presidents must rely on their credibility to take unpopular and contestable actions in times of crisis and President Trump is in danger of squandering his.

Some of the President’s executive orders, like that on immigration, have been issued without sufficient deliberation and his remarks in their defense have been intemperate insults rather than measured criticisms of the substance of their rulings.

But the behavior of the President is no license for lawlessness and the violation of long standing political norms. Yet that is what some of his opponents have claimed with the support from intellectuals. For instance, there have been egregious illegal leaks of confidential and secret information designed to embarrass the President. Bureaucrats have failed to follow long standing obligations to defend his decisions if there is plausible basis to do so. And while it is of course wholly legitimate to challenge the President’s orders in court, some intellectuals have justified judicial action to invalidate them even if they are not illegal. Eric Posner, for instance, acknowledges the legal frailties of important aspects of the rulings against the order on immigration. Yet he argues that judges are playing politics of “ a valid constitutional kind.”  This is wrong and profoundly so: Judges are obligated to follow the law. When they go beyond it, they subvert the Constitution they are sworn to uphold and bring the law into disrepute.

Our constitutional system of checks and balances are enough to contain the President if and when he acts of out bounds.  When his orders are actually unlawful, judges should deprive them of the force of law.  If his popularity declines, he will not be able to get his program through Congress.  Regardless of his attacks, a constitutionally protected free press will continue to shine a light on his administration’s problems, like those of any other.  In less than two years, a congressional election will create an opportunity for more democratic opposition to his policies and more oversight of his conduct in office, if that is what the people choose.  But when his opposition takes the law into its own hands, they show their lack of confidence in our Constitution and their fellow citizens. It is all the worse if lawlessness comes from government officials themselves, egged on by our intellectual elite.

This exchange from A Man for All Seasons has special resonance today:

Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast — man’s laws, not God’s — and if you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.

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on February 20, 2017 at 08:35:32 am
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Paul Binotto

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.