Noah Feldman wrote today in Bloomberg News that Trump got to the presidency by breaking all the rules, but he has come up against one rule he can’t break: the rule of law.
Unlike the unwritten rules of campaigning that Trump flouted, the legal rules are written down. And they come with a full-blown ecosystem of institutions and actors, not to mention the courts that are profoundly committed to sustaining law itself.
Trump and his team seem truly not to understand that. Astonishingly, they didn’t go through the ordinary and almost mandatory procedures that take place within the government before executive orders with the force of law are issued. This amounted to flouting the legal checks that exist within the executive branch itself.
First, they didn’t run the executive order past lawyers at the Department of Justice, whose Office of Legal Counsel reviews all presidential actions that are potentially unlawful. Even the George W. Bush administration in the fevered aftermath of the Sept. 11 attacks managed to submit its plans for interrogation to the OLC (where the so-called torture memos came from).
The OLC would’ve caught most or all of the legal vulnerabilities that plague Trump’s order and that led the various district court s to enjoin it. So it wasn’t just wrong for the administration to ignore the OLC. It was also counterproductive.
Then there is the bizarre fact that the administration didn’t prepare Justice Department lawyers to be able to defend its order by giving them the chance to prepare arguments in advance. Reportedly, in various courts around the country, the department’s lawyers couldn’t answer basic questions about the order or its practical effects — which means they essentially couldn’t defend it. A better defense — or any — might have saved the order.
In practice, the administration failed to give Customs and Border Protection guidance on what the order aimed to do. That led to the kind of embarrassing chaos that helped the courts see the whole thing as an exercise in lawlessness.
All of this points us in one direction: Make a contribution to the American Civil Liberties Union, People for the American Way, and any other groups prepared to defend the Constitution.
Um, dare I mention president Obama and his executive orders re. immigration?? Which did not pass that process you are now holding trump to? And the exact same thing happened with Obama’s order: The judicial system stopped it, just like the judicial system blocking trump’s.
And before you (again) accuse me of being a trump defender: He made too broad of a statement without thinking through the possible repercussions. But then, he is not the first president who acts without thinking things all the way through – no matter which political flavor…
Rudy,
I’m a bit confused. To which executive order do you refer? And are you saying that the Justice Department (OLC) had nothing to say about it or was not involved with the order at all?
Help me out, please give us more information, executive order number and/or whatever other information that we might need to be able to adequately discuss the issues involved. TIA, Duane
Obama’s latest Executive order re. immigration rules. That was topped by the courts a few months ago…
The most recent ruling I could find was from July when the Supreme Court upheld a lower court ruling in a 4-4 tie. Nowhere did I find a comment that the order had not been vetted. In any case vetting doesn’t guarantee that a court challenge will not be successful, but at least it gives the government lawyers a legal position to use if it is challenged. Trump left the government lawyers blowing in the wind.
Trump’s impulsiveness and lack of discipline provide the opposition with tremendous openings to block, obstruct and delay; they should all be pursued while a worker-friendly platform of political and economic renewal is devised (minus the disproportionate sway of proven loser “realists” affiliated with discredited Third Way/Wall Street/Silicon Valley Democrats), to present a constructive alternative.
The big question is if the Trump administration will follow the rule of law, and what will be the consequences if he does not. It seems no one in any position of power has yet to stop him from what he wants to do.
The term I keep hearing is that Trump will lead us to a constitutional crises.
Just like on Seinfeld, ‘sloppy poppy’.
My son sent this to me. It is very scary. I asked who the writer is and was told he works for Google. I hope this isn’t true.
View at Medium.com
Makes just a little too much sense.
I hope this isn’t true.”
Me, too.