A government of laws, and not of men”—that is how the founding generation described the new government it had established to replace what the Declaration of Independence called the “absolute Tyranny” of King George III. The “not of men” half of the formula may seem less apt in the age of celebrity politicians and the 24-hour news cycle. But the principle is more important now than ever as government’s natural tendency to accumulate power is augmented by the potent tool of unmediated mass communication.
The diverse factions that installed President Donald Trump in the White House were reacting against the perceived lawlessness of the Obama administration at least as much as they were affirmatively voting for any part of Trump’s platform. If Trump’s administration stays true to the revolutionary impulse that elected him, he could be remembered as a great champion of the rule of law.
But what is the rule of law, and how is an administration staffed with human beings supposed to restore “a government of laws”?
The rule of law demands the primacy of ordinary legislation by a representative Congress; faithful interpretation, public implementation, and even-handed enforcement of law by the executive branch; and a judiciary dedicated to applying the law as passed by Congress.
The rule of law has no single fixed meaning but describes a constellation of features of good government that put law above raw power. And in our tripartite system each branch has a role to play within the fundamental limits placed on them by the Constitution: The rule of law demands the primacy of ordinary legislation by a representative Congress; faithful interpretation, public implementation, and even-handed enforcement of law by the executive branch; and a judiciary dedicated to applying the law as passed by Congress.
Legislative Supremacy
The first of these elements—legislative supremacy—is fundamental to all the others. The Founders of the American republic recognized the “consent of the governed” as the sole font of legitimate government, and so vested all of the lawmaking power in the most broadly representative branch of government—Congress. It follows that governmental constraints on liberty may be enacted only by ordinary legislation. When the binding law of the land is generated outside the ordinary legislative process (whether by unelected bureaucrats or judges), the rule of law suffers because the People’s conduct is constrained or compelled without their consent.
Violation of this elementary feature of our tripartite system of separated powers was a recurring criticism of the Obama presidency and a leading cause of President Trump’s election. Although President Obama did not invent the Administrative State, his administration witnessed its rapid expansion to a breadth and depth of administrative power never before known. Witness the Obama administration’s novel regulatory engagement with the financial sector, health care, the internet, private land, and greenhouse gas emissions, for example. Although Congress had sketched the boundaries of some of these new governmental endeavors with varying degrees of clarity, the past administration stretched new congressional delegations of rulemaking power to the breaking point—interpreting Congress’s references to “state” health care exchanges to refer to a federal exchange, for example. And the federal agencies claimed for themselves new grants of power in old statutes—the Clean Water Act of 1972, the Clean Air Act of 1970, and the Communications Act of 1934, for example—to regulate new entities and even new sectors of the economy that were foreign to any sensible understanding of congressional intent.
The unavoidable sense that unelected bureaucrats had broken into the cockpit of representative government and seized the controls was a powerful motivator of President Trump’s election. The rallying cry of Obamacare repeal was as much about reining in an out-of-control bureaucracy as it was about curbing Congress.
To restore the rule of law, it will not be sufficient for President Trump simply to replace President Obama’s regulatory priorities with his own policy agenda. Instead, the new administration must articulate an alternative vision of the executive branch’s role—and, by implication, the legislature’s role—in government. Agencies exist to execute the laws passed by Congress, consistent with the President’s constitutional duty to “take Care that the Laws be faithfully executed.” Federal agencies are not legislatures in disguise, free to enact the policy preferences of a regulatory elite.
Congress bears its share of the blame for the runaway growth of the administrative state. By passing broadly framed legislation with only vague standards to be implemented by agencies, Congress has all too often abdicated its lawmaking function to unaccountable bureaucrats, even though the Constitution vests all legislative power in Congress.
President Trump should be sensitive to Congress’s responsibility, and demand that legislation clearly state not just Congress’s broad purpose but the specific requirements of the law. The Courts have established an extremely permissive test for discerning excessive congressional delegation: they allow any legislation that offers the implementing agency an “intelligible principle” to follow in its regulation. But the President bears an independent duty to judge the constitutionality of the bills he signs into law. He can and should demand more than an intelligible principle from Congress.
Faithful Execution
Fidelity to legislative primacy also requires that federal agencies give statutes their best interpretation. Under the Supreme Court’s Chevron doctrine and related administrative law doctrines, courts grant federal agencies broad latitude to interpret the acts of Congress that they administer. Especially when the underlying legislation is vague and open-ended, these doctrines give federal agencies inordinate power to say what the law is—a duty that rightly belongs to the courts.
By passing broadly framed legislation with only vague standards to be implemented by agencies, Congress has all too often abdicated its lawmaking function to unaccountable bureaucrats, even though the Constitution vests all legislative power in Congress.
The Trump administration will face many temptations to take advantage of Chevron deference for its own purposes. But the President would do well to work out his legislative agenda in Congress, not the agencies. As recent history demonstrates, mere regulatory changes can be easily undone when a new administration comes to power. Instead of passing climate legislation in Congress, for example, President Obama’s Environmental Protection Agency adopted a strained re-interpretation of the Clean Air Act that allowed the administration to impose massive new costs on the energy sector to shift it toward energy sources that the administration preferred. Now President Trump’s EPA appears poised to re-reinterpret the Act to undo President Obama’s signature Clean Power Plan. A body of law that changes easily whenever a new faction comes to power is inconsistent with a robust rule of law. Its instability prevents members of the public from ordering their affairs with confidence and undertaking whatever investments are necessary to enable compliance and promote economic growth.
Public Implementation
A related feature of the rule of law is that members of the public must be allowed to know what law binds them. This is possible only with a functioning legislative process, and it is undermined when the operative law that compels obedience takes the form of interpretive rules or even less authoritative pronouncements that can be undone with the stroke of a pen.
The need for knowable law means that when regulations are required as an exercise of the executive’s law enforcement function, federal agencies should regulate through public administrative processes that yield written rules that apply equally to all similarly situated parties.
The alternative approach was used all too often in the Obama administration—a system of informal guidance that may represent the opinion of a single unelected agency employee and may be addressed to only one party. Such “non-binding” guidance enables federal agencies to coerce desired behavior from regulated entities without really taking responsibility for regulation. Agencies often find informal guidance useful because it permits them to avoid the notice and opportunity for comment that are required of rulemaking, and it may allow them to avoid judicial review or to influence the outcome of pending litigation.
Unstable law prevents members of the public from ordering their affairs with confidence and undertaking whatever investments are necessary to enable compliance and promote economic growth.
For example, the Department of Education effected a 180-degree shift in federal policy on which bathrooms schools must allow transgender students to use by issuing an informal guidance letter adopting a novel interpretation of “sex” in Title IX of the Education Amendments of 1972. Suddenly schools had to allow biological males to use girls’ restrooms or lose federal funding. Even though the Education Department’s guidance letter was issued in the course of pending third-party litigation, the courts deferred to the agency’s new interpretation under the Auer doctrine. The Supreme Court agreed to hear the case, but dismissed it when the Trump administration withdrew the guidance in question.
Even-Handed Enforcement
Legislation can order society only if the executive branch will enforce the duly enacted laws of Congress. In a forthcoming article, Gary Lawson notes that “the rule of law emphasizes rule-following as a, and perhaps as the, fundamental operation in the legal system.” Without enforcement, there is no incentive to follow the law, and therefore no law in any real sense.
One of the Obama administration’s greatest affronts to the rule of law was its policy of non-enforcement with regard to statutes that the President disfavored—most notably, federal immigration law and criminal law prohibiting the sale of marijuana. The administration’s policy amounted to amnesty for favored classes of illegal immigrants and illegal drug dealers in states that opted to rescind their relevant state drug laws.
Such non-enforcement policies make a mockery of the legislative process and undermine public confidence in the law. As Richard Epstein has written, compared to outright governmental coercion, government by waiver is actually a more invidious assault on the rule of law: “Rather than setting the state and the private sector against each other in a healthy tension, it fuses them, making the private sphere dependent on the government’s benevolence. And when currying the favor of capricious government officials is required for a person’s well-being or a firm’s very existence, government abuse becomes nearly impossible to oppose.” The Trump administration should resist the temptation to pick and choose what laws to enforce, except when it comes to unconstitutional acts of Congress. Again, the President should work with Congress to repeal unwanted laws through the legislative process, as it is doing with Obamacare.
(credit: MARGARET SMITH)
Faithful Judicial Interpretation
As a presidential candidate, Donald Trump promised to “appoint strong and principled jurists to the federal bench who will enforce the Constitution’s limits on federal power and protect the liberty of all Americans.” His nominations to date have fulfilled that promise. They come from a wide array of professional and life experiences, but they share a commitment, in the words of Joan Larsen—a Michigan Supreme Court Justice, former clerk to the late Justice Antonin Scalia, and nominee to the Sixth Circuit—to “interpret the laws according to what they say, not according to what the judges wish they would say.”
President Trump’s most consequential judicial appoint-ment is Supreme Court Justice Neil Gorsuch. Justice Gorsuch used his first opinion for the Court, a thoroughly textualist interpretation of the Fair Debt Collection Practices Act, to reaffirm “the proper role of the judiciary” in our system of government—“to apply, not amend, the work of the People’s representatives.” As a Circuit Judge, Gorsuch was faithful to Supreme Court precedent, but articulated a healthy skepticism of the excesses of judicial deference to agency interpretations of law. Calling Chevron “a judge-made doctrine for the abdication of the judicial duty,” that is “pretty hard to square with the Constitution of the founders’ design,” then-Judge Gorsuch pointed out that excessive deference to unelected agencies is a threat to liberty.
Every President comes to office with his own policy agenda and faces a temptation to stock the courts with judges who will support that agenda reflexively. In 2014, then-Senate Majority Leader Harry Reid suggested that “simple math” meant the D.C. Circuit would uphold President Obama’s signature health care bill after the appointment of three judges he had nominated. But President Trump deserves credit for valuing judicial fidelity to the Constitution and laws above fidelity to any given presidential policy. If the rest of his appointments follow Justice Gorsuch’s model of humility with respect to Congress’s duly enacted statutes and caution with respect to unelected agencies’ interpretations, the President will reshape the courts in the constitutional mold, preserving Congress’s responsibility for making law, and restoring confidence in a judiciary motivated by fidelity to law, not the policy preferences of individual judges.
Conclusion
President Trump once wrote that “respect for the rule of law is at our country’s core.” When the President writes and speaks about the law, he is often referring to law enforcement. That is a critical component of the rule of law, for law is not truly law unless it is reliably enforced. But enforcement by itself is not enough, as the President’s careful approach to judicial selection demonstrates. To further safeguard the rule of law, President Trump must cooperate with Congress to restore legislation as the source of binding government power, and he must see that his agencies faithfully execute the law without descending into unelected lawmaking. If the Trump administration succeeds in this project, it will have achieved more than simply unwinding the excesses of the past. It will have preserved for another generation the ordered liberty that our government—and indeed all lawful government—exists to protect.
Mr. Gustafson is a partner at Boyden Gray & Associates, PLLC, a constitutional and regulatory law firm in Washington, D.C. During the previous administration Boyden Gray & Associates represented parties challenging EPA’s Clean Power Plan, the FCC’s Open Internet Order, Homeland Security’s DAPA immigration policy, and the constitutionality of the Affordable Care Act and the Consumer Financial Protection Bureau.
