The Rule of Law

“Are there limits to Executive Power?” – The Lonely Realist

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Three consecutive Presidents have excessively extended Executive Power and, as TLR has explained, the excessiveness has been Congress’s fault. Congress has been a passive observer to Constitutional erosion. The foundation of American democracy is the balancing of power among the Executive, Congress and the Judiciary. While recent Presidents have extended their power by among other things issuing unConstitutional Executive Orders, spending recklessly excessively, and building regulatory empires, Congress has ignored its legislative and Constitutional responsibilities and reveled in ineffectual partisan warmaking. The Balance of Power among America’s three branches of government has broken down. The latest breakdown – by Presidential intention – is to the Rule of Law.

Adherence to the Rule of Law has been America’s differentiator, the foundation for successful American democracy. The Rule of Law is the reason why America has been history’s most durable democracy with the world’s free-est press and most successful economy. No other country has observed the Rule of Law in the same way as America. While most have given it lip service, honoring it only in the breach, America has been an enthusiastic adherent.

That’s not to say that corruption hasn’t existed or doesn’t exist in America’s government. What it does say, however, is that respect for the Rule of Law has been paramount, revered by the American public, enforced by America’s courts and judges, and extolled by its elected leaders.

The Rule of Law means that all people, whether inside or outside government, are subject to laws that are fairly applied and evenly enforced. It means that the law is supreme and leaders are not immune – they can be indicted and insulted on the same basis as ordinary citizens –, that every person is held accountable for his or her actions, and that there are no free passes.

The Rule of Law means that Congress and the President are subject to Constitutional limitations, that they together must enact laws, and that the Supreme Court is the final arbiter of the Constitutional legitimacy of their actions. The Executive Branch is solely responsible for enforcing America’s laws. Those laws and their enforcement can be challenged in the courts where judges make their determinations impartially and in accordance with the laws-as-written.

And, yet, the Rule of Law today is being desecrated challenged by precisely those entrusted with its safekeeping…, and with Congress’s passive assent.

On the last day of his Presidency, in an act that ignored his inaugural pledge to uphold the Rule of Law, Joe Biden preemptively pardoned 5 members of his family and a bevy of Donald Trump’s opponents, granting them clemency-in-advance for acts no prosecutor has alleged, for which no charges have been filed, and with respect to which no judicial rulings have been rendered, pardoning them for all Federal crimes they may have committed since January 1, 2014. Joe Biden’s pardons are unprecedented. Those pardoned have been placed outside the Rule of Law. The adverse effect of such Presidential actions had previously been noted by David Weiss, the U.S. attorney who prosecuted Hunter Biden, who rebuked President Biden for stating that a reason for pardoning his son was that the case against Hunter was “unfair”: “[I]njecting partisanship into the independent administration of the law undermines the very foundation of what makes America’s justice system fair and equitable.”

Donald Trump has compounded the assault on America’s Rule of Law by issuing a “complete and unconditional pardon” to (and otherwise commuting the sentences of) all 1,500 individuals who participated in the January 6, 2021 attack on the Capitol, including the 172 who had pled guilty for attacking police. This came as a surprise to a number of the President’s colleagues and supporters, including Vice President J.D. Vance who said that, although peaceful protesters should be pardoned, “if you committed violence on that day, obviously you shouldn’t be pardoned.”

President Trump fulfilled a similar campaign promise, one he had made to the Libertarian National Convention, by pardoning Ross Ulbricht, founder of Silk Road, an eBay-like website where more than 115,000 buyers purchased illegal drugs. Ulbricht had been convicted of numerous Federal crimes and was serving a double life sentence without parole.

Then there is President Trump’s Executive Order attempting to unilaterally nullify the TikTok shutdown law enacted by Congress, signed by the President and upheld by the Supreme Court. As Joe Lonsdale, a supporter of President Trump, wrote, “The law must take effect because in our republic, it is the Congress that writes the law. If President Trump disagrees, he can try to change Congress’s mind.”

President Trump also has signed an Executive Order “nullifying” birthright citizenship. The right to birthright citizenship is explicit in the 14th Amendment. A President cannot end a Constitutional right with the stroke of a pen. A President may attempt to amend the Constitution, but no President should openly flout it.

Finally, there are the new memecoins, $TRUMP and $MELANIA, issued by President and Mrs. Trump. The President benefits financially from the sale of Presidential memecoins – first when they are sold to the public and a second time when the remaining ~80% still owned by the Trumps are sold on the blockchain to whoever anonymously wants to compensate the President –, and he is doing so at the same time the Trump Administration is establishing America’s policies, including regulations governing the crypto/meme coin markets. This was not a situation envisaged by the Founders when they wrote the Emoluments Clause of the Constitution.

As a cornerstone of American democracy, the Rule of Law embedded in America’s Constitution is expected to be honored by America’s leaders, not undermined by them.

Finally (from a good friend)

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