The Slippery Slope of Lawlessness

 

This past Saturday afternoon I should have been outside enjoying a nice spring day here in the D.C area. I could even have been getting some exercise—though on that front I increasingly have Churchill’s view: “Whenever I feel the need to take some exercise, I lie down until the feeling goes away.”

In any case, I was inside, at my desk, listening on my computer to an emergency hearing presided over by the chief judge of the United States District Court for the District of Columbia, Jeb Boasberg. Plaintiffs, represented by the American Civil Liberties Union, were seeking a temporary restraining order halting the deportation of alleged Venezuelan gang members already in custody in the United States who were being sent to a prison in El Salvador with no opportunity for a hearing or any requirement that evidence be presented.

The lawyer for the government defended its actions. He cited the Alien Enemies Act, which President Trump had just invoked for only the fourth time in U.S. history, and for the first time when we were not at war. He claimed the president has something like an uncheckable and unreviewable “war power” under Article II of the Constitution. He also argued that being sent to an El Salvadoran prison wouldn’t constitute “irreparable harm,” the standard a temporary restraining order has to meet.

Judge Boasberg found for the plaintiffs and imposed a temporary restraining order on the government. This, I thought as I listened, was the rule of law in practice. The hearing was sober and orderly and deliberate, with little in the way of emotion or soaring rhetoric. I found it not merely impressive but oddly moving. I felt a sense of pride and gratitude that we live in a country with a well-established rule of law—something rare in human history.

It was a reminder of why the rule of law—why our rule of law, the edifice we’ve built up over two and a half centuries—is something to be respected, something to be honored. I’d even go so far as to say that it’s something to be cherished.

In Federalist No. 51, defending the separation of powers and its pitting of ambition against ambition and its connecting the interest of officeholders with the constitutional rights of the place, James Madison explained:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

We’re not angels. And rule by angels isn’t available to us. To avoid anarchy, we need a government that can control our potentially violent passions. And we need the rule of law and its institutional buttresses like the separation of powers to enable us to live in freedom, not despotism.

This fundamental feature of a free government is what the Trump administration is challenging. One sees this when Attorney General Pam Bondi, speaking at the Department of Justice, pledges fealty to the president, saying Justice Department lawyers should be proud “to work at the personal direction of Donald Trump,” and that “we will never stop fighting for him.”

And of course one sees the challenge in a host of actions by the Trump administration, in areas ranging from immigration to abrogating legal protections for civil servants to trampling on Congress’s power to appropriate funds and to direct their spending.

The day before Judge Boasberg’s hearing, Vice President JD Vance was interviewed by Laura Ingraham on Fox News. Vance was discoursing on Germany, a country about which he has strong opinions, as evidenced by his endorsement of the extremist Alternative für Deutschland before last month’s German elections.

In the interview, Vance claimed that “Europe is on the brink of civilizational suicide,” in large part because of its failure to control its borders. “If Germany takes in millions more incompatible migrants, it’ll destroy itself. America can’t save it.”

Of course, Germany did destroy itself almost a century ago. It almost destroyed civilization itself until America stepped in to help save it. That didn’t happen because Germany took in too many migrants. It happened because the German people fell for arguments uncomfortably close to Vance’s. Those were arguments that derided the very concept of the rule of law, a derision that was defended in part by warnings about immigrants and foreign blood.

The Trump White House did not abide by Boasberg’s order to turn the planes around. It claims the planes were over international waters and, incorrectly, thus no longer subject to his jurisdiction. But even if there was no direct violation of the rule of law, the next day featured several vocal demonstrations of contempt of it. The Trump administration seems aggrieved by the idea they’d be restricted in any way by any judge. It feels like a matter of time before they simply, brazenly, refuse to be.

One trusts that the United States isn’t going to go the way of Germany in the last century. But the slope toward lawlessness is a slippery one, and we have an administration that is eagerly leading us down it. There are still footholds we can grab onto in order to arrest the precipitous decline that lies ahead. But we are already part way down the hill, and the pace of decline is accelerating.

by William Kristol with Andrew Egger, and Jim Swift