15 Jun The Rule of Law

“America’s judiciary is the Founders’ safety valve.” – The Lonely Realist

TLR first wrote about the Rule of Law in April 2019, emphasizing its significance as a cornerstone of America’s success. The American Rule of Law is different from the Rule of Law practiced in other countries. America’s laws are more comprehensive and have a lengthier history than those enacted and practiced elsewhere. The tremendous success of the American Rule of Law in ensuring fairness and stability is a primary reason why America has the broadest range of freedoms and the world’s most successful economy. For those in power in other countries, laws often serve as a crutch that can conveniently be ignored or undermined. That’s not to say that corruption has been banished from American democracy. What it does say, however, is that the American legal system minimizes the potential for state capture and the miscarriage of justice, doing so via a complex web of legislation, regulation, judicial fact-finding and appellate decision-making that requires confirmation at multiple layers of government. In America, the Rule of Law means that the legislature and the chief executive together must enact laws. Police and prosecutors are delegated the authority to implement those laws, and the courts have final discretion in overseeing the validity of those laws and their enforcement. The division balance of power among the Executive, Legislative and Judicial branches of government ensures that laws are constructed and vetted by separate interests, and that levels of lower, appellate and supreme courts provide layers of safety and durability in confirming legitimacy and even-handedness.

America’s Rule of Law thereby imposes legal and procedural guardrails to ensure that Federal and State executive (and judicial) actions do not exceed Constitutional boundaries. A June 5^th decision by a unanimous three-judge panel of the Fifth Circuit is illustrative, striking down SEC regulations that had sought to impose 650 pages of extensive new restrictions and disclosure requirements on private fund advisers. In National Association of Private Fund Managers v. SEC, the Fifth Circuit held that the SEC had exceeded the authority granted it by Congress. The Fifth Circuit’s decision confirms that America’s judiciary will not underwrite Executive Branch over-reach (that is, rising Statism).

Some readers who are similarly opposed to too-big government, have asked TLR to write about “the fixed and farcical” prosecution and resulting guilty verdicts against former President Trump. That prosecution, however, was a classic application of the Rule of Law. There was no “fix” (although there was quite a bit of “farce”), there being no issue concerning Mr. Trump’s guilt. The facts adduced at trial established that Mr. Trump was guilty of falsifying business records “beyond a reasonable doubt” (as Mr. Trump admitted, “Mother Teresa could not beat these charges”) – that is, Mr. Trump authorized payments of hush money to keep a sordid story out of the press, and thereafter approved the mislabeling of the reimbursement. Although the jury’s verdict therefore was correct, the law is less clear, the question being whether Mr. Trump’s actions made him guilty of a felony or a misdemeanor. That now will have to be determined by an appellate court, which also will have to decide whether the trial judge erred in his rulings. This is precisely how the Rule of Law is designed to work (at least for well-funded defendants). Whether a felony case should have been brought in the first place is a separate question, since the elected New York district attorney creatively conflated two laws to allege the felony. Yet, had another defendant been faced with such creativity he would eagerly have pled to the misdemeanor. Mr. Trump believed that the benefits of a trial would outweigh its consequences – and, thus far, he has been right. Mr. Trump at worst will face community service (which serving as President would satisfy) plus a fine, and then only if his convictions are upheld, an outcome still years away. Meanwhile, Mr. Trump has achieved a desired PR coup. The verdicts accordingly are not an example of an over-powerful [New York] government engaging in state capture.

Which brings us to a core problem: the ascendancy of Statism in America, a trend TLR has consistently bemoaned by pointing to the policies (primarily Executive Orders) pursued by former Presidents Obama and Trump and by President Biden (as well as by State Governors) (“Statism” also being the label recently adopted by George Will). The most recent example of the exercise of Statist executive power was President Biden’s June 4^th Executive Order effectively banning asylum for immigrants temporarily suspending the processing of asylum claims based on a seven-day average of unauthorized crossings. President Trump had attempted to limit immigration in a similar way in 2017…, with the courts quickly ruling his Order to be unConstitutional, a cogent example of the Rule of Law in action. The same outcome will apply with respect to President Biden’s 2024 Executive Order. The courts indeed are the Founders’ safety valve. Reforming America’s immigration and, as the Supreme Court this week confirmed, its gun laws requires a Congressional majority. No such majority today is prepared to take the necessary steps and the Rule of Law will not permit an Executive Branch end-run.

The wheels of democracy the Rule of Law grind slowly, but they indeed grind exceedingly fine. America’s judicial system was designed to reach the right conclusions, although doing so often takes years of expensive litigation. That’s how democracy the Rule of Law minimizes mistakes. Finding a balance between effective regulation and over-regulation also takes time, as does validating/invalidating criminal convictions. And changing existing laws – whether immigration or otherwise – takes not only a willingness to compromise, but time. No one pretends that democracy the Rule of Law is perfect or that it grinds quickly or inexpensively. Indeed, it has been said that democracy, along with its Laws, is the worst form of government…, except for all the others.

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Finally (from a good friend)