By Paul Gowder

Many Americans on the political right appeal to the idea of the rule of law to justify expelling undocumented immigrants and preventing ostensibly irregular refugee entry, like the “caravan” from Honduras. The broad idea seems to be that even those in dire need who are seeking the aid of the United States must do so through formal legal channels. For example, Tyler Houlton, the Department of Homeland Security spokesperson, said this on Twitter:

Stopping the caravan is not just about national security or preventing crime, it is also about national sovereignty and the rule of law. Those who seek to come to America must do so the right and legal way. — Tyler Q. Houlton (@SpoxDHS) October 23, 2018

Similarly, Ari Fleischer declares that “[o]pposition to the caravan… is about the rule of law and people taking advantage of our country.”

This story is infuriating. And so off-base. Opposition to the caravan, it says, is stoked by fear. To me, it’s about the rule of law and people taking advantage of our country. https://t.co/580xf6OSNE — Ari Fleischer (@AriFleischer) October 28, 2018

This is a serious mistake. The point of the rule of law is to control the abuse of power—, particularly government power—not to force the powerless to submit to formal legal processes.

What is the rule of law, anyway?

At its heart, the rule of law is a moral principle of how government power is to be used. It specifies that government power may be invoked:

only when authorized by law,

pursuant to legal procedures that give the people subject to government authority the ability to demand a justification for official action,

and on the basis of laws that reflect a public purpose which treats people as equals.

The classic contrast to “the rule of law” is “the rule of men:” the arbitrary use of the powers of governance by petty autocrats and kleptocrats, the show trials and secret police of the Soviet Union, the disappearances of Pinochet, the shameless plunders of Roman imperial governors, and the roaming gangs of semi-official thugs of Papa Doc Duvalier and Rodrigo Duerte.

Commentators like Houlton and Fleischer don’t just get to invoke their own version of the rule of law. It has a real meaning. When we appeal to the notion of the rule of law, we draw on a long history of thought by lawyers and philosophers about controlling the dangers of lawless government power.

Probably the first reference to anything reasonably translatable as “the rule of law” was in Aristotle’s Politics. For Aristotle, the rule of law was a necessary part of a regime in which the people were understood as equals: if all were equal, then it was wrong for some to have the power to rule others. Aristotle argued that in such a regime, officials were to be understood merely as servants of the law.

A.V. Dicey, usually considered the greatest expositor of the British rule of law, expresses the ideal in a couple of key principles. First, nobody can be punished by the government except pursuant to a violation of law prosecuted via ordinary legal process. Second, nobody is above the law—officials, aristocrats, all are subject to the same law as everyone else.

The canonical documents of our shared legal tradition are filled with Dicey’s principles. Chapter 39 of Magna Carta declares that “[n]o free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.” The Fifth and Fourteenth Amendments to the U.S. Constitution protect legal equality and forbid life, liberty, and property from being taken by the government absent due process of law.

The great thinkers of this rule of law tradition have also explained why we ought to value the rule of law, understood this way. For Aristotle, as I said, it was a consequence of equality: if the people of a country were genuinely equals, then no one could have the power to rule over others without law.

For F.A. Hayek, the rule of law was about liberty. Hayek argued that a person who could not be punished except according to law could, by consulting the law, have notice of the complete set of forbidden behaviors—giving him or her some guarantee that any other behavior would be permissible. By contrast, someone who could be punished pursuant to the arbitrary will of some petty dictator would have to walk around on pins and needles, afraid to take any bold action for fear of offending the powerful—a phenomenon that free speech scholars call a “chilling effect.” In addition, if officials had to be subject to the same law as ordinary people, they had an incentive to keep that law from being too oppressive—if they made all kinds of silly rules, they burdened themselves like they burdened everyone else. (I have some problems with Hayek’s argument, but they’re not pertinent here.)

Notice how all of this so far has been about the government and its power. Those who fought to establish the rule of law throughout history have always feared the arbitrary use of the monopoly of violence held by states, never the misbehavior of ordinary people. They realized that ordinary people simply didn’t have armies of heavily armed people to do their bidding, and are therefore less of a threat than the state.

The danger of bad rule of law arguments

Yet the American conversation has sometimes featured a troubling second story, according to which this normative principle we call “rule of law” requires ordinary people to obey the law. As the paragraphs above suggest, I think this is a bad mistake—we might call it the obedience mistake. I’ve argued against it at greater length in the academic journals. Taken to an extreme, this kind of talk about the abuse of rule of law actually enables rather than inhibits the overuse of official power.

Nathan Robinson has written a wonderful essay about the absurdity of pretending that a five-year-old immigrant can be held to a document which she signed waiving a right to a hearing—as if the formal rules and signifiers of legal waivers mean anything in the face of the grotesque power disparity between a team of heavily armed federal agents and a toddler. But the obedience mistake almost seems to justify holding the five-year-old to her signature. After all, there’s a formal sense in which it’s just ordinary legal process. The government has the legal power to ask people to waive their rights, and she signed it—in this country, whether at the used car dealership or in the immigration detention, we hold people responsible for the things they sign. If we demand that the government obey the paperwork that formalizes the legal rules established to control its choices, why shouldn’t we make the same demand of those whom the government regulates?

Of course, we all know that’s nonsense. The legal as well as conceptual absurdity of the notion is self-evident here, because a five-year-old doesn’t have the capacity to knowingly and intelligently waive legal rights. Under any even remotely plausible reading of the legal formalities, the document was a nullity from the moment the ink was dry. As it turns out, we don’t let kindergarteners buy used cars either—and not just because they don’t get a license until they’re sixteen.

But what about an adult? Suppose a grown person from Honduras, maybe not so fluent in English, and under pressure (but not illegal pressure) from ICE, signs this document? Must we hold him or her to it as strictly as we’d hold the government to a waiver of its rights?

Or suppose—as doubtless happens every day in the nation’s courts—an innocent criminal defendant agrees to a plea bargain under pressure from the prosecutor. Again, not illegal pressure, as such. Just…pressure. It turns out that America has a lot of really punitive laws, and prosecutors have nearly unconstrained power to [over-]charge people with violating them. Even if you’re innocent, if the prosecutor can charge you with enough crimes to be facing a 20-year sentence, and then they offer you six months, you have to be pretty confident about your ability to convince the jury to risk a trial. So you take the deal. Is this the rule of law?

The rule of law is a one-way street

Here’s one thing that someone might say about the rule of law and these kinds of rights waivers: “we have to respect legal formalities, because the alternative is just to give officials broad discretion: would you rather the rule be that ICE agents get a choice whether or not to give someone a hearing, regardless of what form that person signed or declined to sign?” My imaginary interlocutor might go further, and say that holding government officials to the rules necessarily implies giving legal significance to the individual decisions of people as to whether or not to waive their rights. The choice available to government officials is to strictly follow the law (including holding people to their waivers) or to use their own discretion (and hence have uncontrolled power). There’s no in-between.

Tempting as that thought is, it’s wrong. It’s possible to have one-way discretion. Formally speaking, the rule that “you have to give someone a hearing, unless they sign the paper waiving the hearing” does not entail “if they sign the paper waiving the hearing, you don’t have to give them a hearing.” (To infer the latter from the former would be to commit the classical fallacy of denying the antecedent).

In terms of how we ought to think about discretion and justice, we can and should say that the official does not have the discretion to use the government’s power against the individual when it isn’t authorized by the rules, but does have the discretion to decline to use that power when it is so authorized. Of course, there are some cases, as when the official uses discretion in a biased or self-interested way—never prosecuting people of a particular race or people who pay a bribe—when other rule of law values prohibit the use of discretion. But in most cases we can distinguish between corrupt uses of discretion and the use of discretion to serve justice.

Moreover, sometimes we think that officials ought to exercise discretion to not use their power over people. Suppose a police officer pulls someone over for a minor speeding offense, and then sees a pregnant woman going through labor in the passenger seat. Not only would we praise the officer for letting the driver go, I think most of us would go so far as to say that the officer does something wrong to write the ticket. In such a situation, we ought to describe the use of the government’s power to write the ticket as legally permissible yet unjustified.

The same goes for punitive responses to the caravan. The legality of the prospective actions of caravan members is, at best, complicated. As I understand it, the following three propositions express the legal status of people in the caravan (and I’m not an immigration lawyer, but I’ve run this by some friends who are immigration lawyers, so there’s that):

People in the caravan can show up at ports of entry and request asylum without breaking any U.S. laws at all. People in the caravan can enter illegally (in which case, obviously, they do break a law), but they’ll be protected from deportation while an asylum request is adjudicated, as well as win the permission to stay in the country if their request for asylum is granted. U.S. law arguably only entitles people to request asylum when they’re in the country (although another good reading of the statute is that people are entitled to request asylum outside the country, at a port of entry). In principle, Trump could close the ports of entry and make no officials available outside the country for members of the caravan to request entry. Practically speaking, that would mean that in order to make a request for asylum, people in the caravan would have to commit an illegal entry, just to find someone to make the request to. In effect, Trump can set it up so that you have to risk breaking the law in order to seek asylum in the U.S.

So suppose that last contingency happens: Trump closes the border, anyone who asks for asylum has to illegally sneak in to do so.

Improper entry is a relatively minor crime. Shutting down the border is like intentionally closing a major thoroughfare in a big city to force traffic onto side streets knowing in advance that many drivers many will exceed the residential speed limits. That’s irresponsible governance. Still, it’s better if drivers stay within the limits of law. But if they don’t, it’s not a crisis. An increase in moving violations doesn’t call into question the integrity of the legal order.

Likewise, we’re not going to lose anything that we value in the rule of law just because a few people cross the border illegally. Actually, closing the border would be far more irresponsible than shutting down a freeway, because the government would have no purpose for doing so other than to force otherwise innocent people into lawbreaking in order that they might have an opportunity to make lawful claims to asylum that they would otherwise be able to make. It’s analogous less to innocent road construction and more to Chris Christie’s malicious bridge blockade.

The U.S. government has the legal obligation to entertain requests for asylum no matter how the requesters get across the border to make them, and the humanitarian obligation to exercise discretion to allow the requesters to make asylum requests at the border. People like Houlton and Fleischer should stop pretending that it would somehow offend the rule of law for the government to comply with those obligations, even if the requesters do end up having to break the law to get in a position to make the request.

Law and order

Let’s be a bit more charitable to Houlton and Fleischer. There’s surely some reason for people to follow established procedures. If you can enter the country the bureaucratic way, by filling out the forms and waiting at an embassy for a visa, shouldn’t you do so?

I think what Houlton and Fleischer are really getting at, and what a lot of conservative-inclined folks really mean when they talk about the “rule of law” as a reason for people to check the bureaucratic boxes, is something like “order.” And, to be sure, order matters. It’s easier to live in society if your fellow humans behave predictably, as set out by the rules. If nothing else, predictable behavior makes it cheaper to run institutions affecting large numbers of people. And of course violent disorder is unacceptable because violence is morally reprehensible.

But it’s hard to see how nonviolent kinds of rule-breaking are bad other than for those two reasons, that is, because it’s more expensive to deal with disorderly behavior, or because disorderly people sometimes jump queues in an unfair way. Those are the only ways in which rule-breaking even arguably hurts one’s fellow humans.

If that’s what matters to you, that’s fine and good, but you should say so explicitly. Let’s rewrite that Houlton tweet a bit:

Stopping the caravan is not just about national security or preventing crime, it is also about national sovereignty, efficiency, and turn-taking. Those who seek to come to America must do so the inexpensive and bureaucratically-convenient-for-the-government way.

Sounds a lot less convincing, doesn’t it? Traditional rule of law values like freedom and equality might outweigh the humanitarian needs presented by a caravan of refugees—but saving a few administrative costs sure doesn’t.

At most, maybe Houlton can say that it’s unfair to other people who want to request asylum to give priority to considering the requests of those in the caravan—but that argument is implausible too, since we ought to allocate our request-consideration resources according to need, and it’s hard to believe that people who weren’t in dire need would walk thousands of miles to get to a country they perceive as safe. And, at any rate, if we accept that people who are genuinely entitled to asylum under our law are also entitled to request asylum, then if there are more people requesting than our current institutions can accommodate, we ought to spend a little money to expand the capacity of those institutions.

At bottom, this rule of law argument against the caravan seems to come down to nothing but stinginess.

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Paul Gowder is Professor of Law at the University of Iowa, where he also holds courtesy appointments in the Departments of Political Science and Philosophy. He is author of The Rule of Law in the Real World.

Photo Credit: Public Domain