By Jacob T. Levy

The rule of law and risk of lawlessness

In public law and politics, the core meaning of the rule of law is this: that the executive branch of the government, in control of the violent agencies of state power and the tools of punishment, shall not use them lawlessly.1 It shall not imprison, execute, or otherwise punish except in accordance with prospective, promulgated law and trial conducted through fair and regular procedures. The writ of habeas corpus is the most famous instantiation of this value in the Anglo-American tradition, with medieval roots that early modern, protoliberal Whigs exaggerated into a full-blown centuries-old legal rule.

If their history of the rule was flawed, their judgment of its importance was sound. A century or so later, the French theorist Montesquieu built one of the first political theories recognizable as classical liberalism on foundations that included a separation of powers that distinguished judicial trial from executive punishment and an understanding of liberty as security from extrajudicial punishment. Montesquieu’s comment that liberty consisted in the ability to do what the law permits was a source of 20th century confusion; many misread him as defining liberty away. In fact, the key insight was that despotic states punish people even though they have broken no law, or never been properly convicted of it. The idea travelled to America not only in the constitutional guarantee of habeas corpus and the Fifth Amendment guarantee of due process, but also in the broad aspiration to erect “a government of laws, not men” (Adams) and to ensure that “in America, the law is king” (Paine).

In postwar debates about the value of the rule of law, many critics pointed out that it’s possible to pass terribly restrictive, unjust, and illiberal legislation, and then to enforce it with procedural correctness. But a reply suggested by the work of rule-of-law theorists such as Lon Fuller and Judith Shklar is: This is not how terror states and totalitarian regimes function. They deliberately leave their whole populations at the mercy of the executive with its police, secret police, and paramilitary agencies. And while the rule of law so conceived is not sufficient for a free and liberal society, it surely is necessary — and it goes some way toward preventing some of the greatest of political evils. Where people are constantly subject to the whim of the police and related agencies, they are not free. Even notionally very liberal laws do little good if state violence can be inflicted and bodies imprisoned without crimes or trials. The politicization of law enforcement or the military or paramilitary is always a threat to liberty, whatever the content of the formal law. And, we generally understand, the semi-oxymoronic condition of “martial law” imposed on a civilian population is, by its nature, a suspension of civil liberty.

There is a real tension between the rule of law and what happens at or outside a country’s borders. No trial precedes killing an enemy soldier in combat or taking him or her as a prisoner of war. But it does not follow that the rule of law disappears outside the domestic sphere. The creation of Guantanamo as a juridical (as well as a literal) black hole, allowing both torture and permanent extrajudicial imprisonment outside the rules governing POWs, wasn’t a foregone conclusion or the application of the necessary logic of the international situation. It was a decision to gravely undermine the American commitment to the rule of law. It stretched the complicated problem of how to apply the rule of law outside the domestic setting to the breaking point.2

So we have the aspiration to the domestic rule of law, an international arena where it is only ever partly at work, and the problem of what happens — literally and figuratively — at the border between the two. Those borderline cases could be approached through the strategy of projecting the rule of law and liberal values out onto them as far as possible. But all too often the influence goes the other way: the lawlessness of the border undermines the rule of law and civil liberty within.

Children in cages

Any system of mostly-closed borders and immigration control, as became common from the early 20th century onward, and as characterizes the US today — will be a regime of only imperfect and partial protection of the rule of law. But, as with the difference between law-governed POW imprisonment and Guantanamo, there are degrees of lawlessness that matter profoundly.

Note that the way restrictionists talk about law and lawlessness is, from the perspective of the liberal rule of law, basically backward. Even at the best of times border policing veers toward lawlessness: at the point of entry, the enforcement officer makes a basically unreviewable and processless decision to exclude by armed force.

And these are not the best of times. As both Amy Erica Smith and Dara Lind have argued, the supposed “law and order” agenda noisily proclaimed by President Trump and Attorney General Jeff Sessions is very different from, and in important ways opposed to, the rule of law.

Restrictionists treat the fact that some people overstay their visas (a civil offense) and others enter the United States between official points of entry (a misdemeanor) as a breakdown of lawfulness. This circumstance is no more corrosive of the rule of law, however, than the fact that millions of American drivers speed on the highway every day without getting a ticket. The threat of lawlessness comes instead from a president who makes demands like this:

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came. Our system is a mockery to good immigration policy and Law and Order. Most children come without parents… — Donald J. Trump (@realDonaldTrump) June 24, 2018

Or this (2):

Congress must pass smart, fast and reasonable Immigration Laws now. Law Enforcement at the Border is doing a great job, but the laws they are forced to work with are insane. When people, with or without children, enter our Country, they must be told to leave without our…….. — Donald J. Trump (@realDonaldTrump) July 5, 2018

…..Country being forced to endure a long and costly trial. Tell the people “OUT,” and they must leave, just as they would if they were standing on your front lawn. Hiring thousands of “judges” does not work and is not acceptable – only Country in the World that does this! — Donald J. Trump (@realDonaldTrump) July 5, 2018

As was widely noted when Trump wrote these tweets over the last month, due process is how we ensure that citizens and legal residents aren’t among those swept up and deported. Mass expulsions without judicial oversight or procedural protection would be not only a violation of international law and of the U.S. Constitution (which guarantees due process to persons, not only citizens). It would also be a grave threat to the liberty-as-security of all American residents. It stands as starkly as anything this side of Guantanamo as a rejection of the rule of law and its underlying values. For the sake of a militarized “order” on the border, Trump proposes to undermine law and liberty alike. In the most obvious way, Trump proposed to let the lawlessness of border control seep into domestic American space.

But the threat is not only hypothetical.

As it is, constitutional protections and civil liberties are weakened within a 100-mile zone from all borders, including coastlines, an area where about two-thirds of all Americans live. Customs and Border Protection (CBP) holds expanded authority in that zone to conduct searches and seizures, create checkpoints, and ask for papers, in ways that would be illegal for ordinary police. The only-partial rule of law at the border has already been projected inward.

Throughout the country, Immigration and Customs Enforcement (ICE) has wide discretionary authority to target whom and where they like for raids, detentions, and deportations. There seems to be good reason to believe that they are targeting immigration activists and opponents of administration policy. And in states and localities without the protection of sanctuary status, residents of Latino neighborhoods often fear calling the police even to protect themselves against violence lest the police begin checking citizenship status.

And, of course, the Trump administration, having eased the path with a record of dehumanizing language directed against migrants (“animals,” “catch and release”), saw its way clear to separating thousands of children from their families and locking them in cages without charge. The supposed necessity to do so arose out of a determination to detain their parents for improper entry between official points of entry — even if the parents claimed asylum, as is their legal right. In fact, the administration has sought to crack down on asylum claims at regular border crossings, pushing asylum-seekers into crossing at other points, and making them vulnerable to indefinite detention and family breakup. As is so often the case with violations of the rule of law, that vulnerability is the point: to put people at the mercy of the armed agents of the state, put them in fear, try to scare them out of claiming a day in court where they might vindicate their rights.

In response to the outcry against family breakups and pictures of children in cages, the administration embarked on a new lawless policy: a plan to detain families together, indefinitely, in defiance of the so-called “Flores settlement,” a consent decree that concluded a round of lawsuits in the 1990s. The Flores settlement prohibits holding children in such cases longer than 20 days. The administration is seeking to have the Flores settlement suspended or overturned, but seems to be making no preparation for what will happen if they fail. Indefinite, whole-family detention is the administration’s preferred outcome. Even if they succeed in changing the legal rules to make that permissible, it will not be an outcome that a free people should welcome.

The judicial road to lawlessness

Consider, finally, the Supreme Court’s 5-4 ruling in Trump v. Hawaii, upholding the administration’s travel ban. (On this, see Scott Lemieux and Ilya Somin.) The ban is mostly on people coming from several Muslim-majority countries, and was preceded by many comments from Trump making clear that he viewed it as a partial version of the “complete and total shutdown” of Muslim immigration he called for on the campaign trail.

Chief Justice John Roberts’ opinion held that the overwhelming evidence that the ban was motivated by anti-Muslim animus was not enough to outweigh the traditional deference to the president in matters of national security and border enforcement. But the court had never held that deference to be absolute, saying even in the notorious Korematsu v. United States (1944) that the internment of Japanese-Americans purely on the grounds of race would not pass constitutional muster under ordinary circumstances. Only the necessity of military emergency allowed it.

In order to keep the taint of Korematsu off the travel ban, Roberts misstated this holding. He purported to — finally — overrule Korematsu, writing that it was wrong when decided and had no place in ongoing constitutional law. But he described this as recognizing that the internment of U.S. citizens, “solely and explicitly on the basis of race,” was unlawful. Korematsu had not held otherwise! Rather, like the court in Trump v. Hawaii, the Korematsu court allowed a transparent and pretextual excuse of “real military dangers” to overcome what is said would be the “simple” and “clear” outcome if “racial prejudice” were at work.

For many years Korematsu has been a zombie opinion in American law: neither overruled nor accepted as good law, but discreetly ignored as an embarrassment. For the sake of upholding Trump’s travel ban, the court gave it new life. It authorized new and continued end-runs around such constitutional protections as those against religious establishment and racial discrimination, provided that they are covered with a thin, neutral-sounding appeal to national security. Rather than allow presidential policymaking about immigration to be subject to any meaningful constitutional constraint, the court allowed the supposed need for discretion at the border to overcome core principles of American constitutional law itself.

Law, liberty, and migration

I have recently argued in the pages of Foreign Policy (and do so at greater length in the pages of the Cambridge Handbook of Classical Liberal Thought, coming out in a few weeks) that the time is right to be thinking about the political thought of Judith Shklar and F.A. Hayek together. For all their serious differences, both developed Montesquieuian accounts of liberalism that emphasized the rule of law over abstract theories of rights or social contract narratives. And I think it is not a coincidence that they both spent most of their lives as exiled emigrants from homelands that were swallowed up by midcentury expansionist totalitarianism (Hayek from Austria, Shklar from Latvia). Neither indulged nationalism or could ignore the importance of the ability to cross borders, seeking refuge and liberty.

Hayek was the more legalistic of the two, concerned with protecting an open and neutral system of law from politicization, instrumentalization, and militarization. Shklar was the more acutely attentive to state violence and the threat posed by the armed policing and military agencies. But we see here how closely the concerns dovetail. Not only does the cruelty, arbitrariness, and militarization of border policing undermine the rule of law within — through the sacrifice of civil liberties within the hundred-mile zone, the authorization of a terrorizing internal police force outside the normal boundaries of law in ICE, the imprisonment of the innocent, and the threat of deportations without due process. The contortions of formal law we see in Trump v. Hawaii in turn authorize greater cruelty, arbitrariness, and lawlessness, with a new instruction manual for how executives can get away with them in the future.

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Jacob T. Levy is Tomlinson Professor of Political Theory and Director of the Yan P. Lin Centre for the Study of Freedom and Global Orders in the Ancient and Modern Worlds at McGill University; author of Rationalism, Pluralism, and Freedom and scholarly articles including, most recently,”Contra Politanism”; a blogger at Bleeding Heart Libertarians; and a Niskanen Center Senior Fellow and Advisory Board Member.

Photo: Public Domain: https://www.flickr.com/photos/cbpphotos/8468741926

1. The core meaning of the rule of law in private law is different: contracts shall be enforced and legal rights respected impartially, without corruption, favor, or nepotism. The two values are connected but they are not the same, in either their moral foundations or their institutional expression.

2. A handful of readers will expect a discussion of Giorgio Agamben at this point. As the Dread Pirate Roberts once said: “Get used to disappointment.”