For weeks Americans have been debating whether we’re facing a constitutional crisis. My answer, for the record, is that we are.
But perhaps more than a constitutional crisis, we’re in a rule of law crisis. And while the courts are caught in the middle of this crisis, it’s not something they can adequately remedy.
The basic proposition of the rule of law is that we are a society of laws, not of men. Government actors must wield their power consistent with rules that are known in advance, so people understand what’s expected of them and what consequences will attach to particular actions.
It also demands that government officials take action based on what the legal philosopher Jeremy Waldron recently described as a set of “public norms” rather than “on the basis of their own personal or political preferences.” It requires what the scholar Lon Fuller called “generality” — the equal application of the law — and it demands accountability by those in power when they are found to have taken unauthorized action or exceeded their authority.
Many of the administration’s actions in the first 100 days of President Trump’s term violate core principles of the rule of law — most notably in the administration’s almost gleeful lawlessness in response to its mistaken deportation of Maryland father Kilmar Armando Abrego Garcia, but also in its elimination of funds in violation of numerous statutes passed by Congress, mass firings of both high-level officials and civil servants and the targeting of perceived enemies in cartoonishly unconstitutional orders. While these actions are inconsistent with core rule-of-law principles, they may also violate specific provisions of the Constitution.
The Constitution sets forth particular requirements: Laws must be passed by Congress and signed by the president or over a veto; the president shall “take care” that the laws are faithfully executed; no person shall be deprived of life, liberty or property without due process of law.