Recent Threats to the Rule of Law in the US

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Dr. Sherif A. Elgebeily, CSIPS Director

The Attorney-General of the United States serves at the pleasure of the President. That much is abundantly clear even to those who questioned the legality or legitimacy of the summary dismissal of Acting Attorney General Sally Yates on January 30th for doing precisely what she pledged to do at her confirmation hearing – to stand up for the law and the US Constitution, and to offer “independent legal advice to the President.” From a legal standpoint, the dismissal was entirely permissible; yet from a rule of law angle, it was deeply troubling.

The power to effect an action should always be studied in isolation of the wisdom of doing so; the belief is not new that “it is excellent/To have a giant’s strength, but it is tyrannous/To use it like a giant.” It is for this reason, surely, that over generations and centuries our understanding of the rule of law has developed to subjugate – at least at the domestic level in democratic nations – all natural persons to the law.

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Deputy Attorney General Sally Yates with US Marshals in 2016

The dismissal of Yates for her stand against an unconstitutional, and seemingly arbitrary, Executive Order – in the absence of prior legal advice, and in contravention at least of the Fifth Amendment of the US Constitution – signifies a stance typical of many boardrooms but dangerously mismatched to the Presidency: that dissent of any form will not be tolerated irrespective of Presidential decisions’ negative ramifications, incompatibility with the law, or almost certain exacerbation of the very challenges that they purport to tackle. By refusing to prosecute under the authority of the Border Security and Immigration Enforcement Improvements Executive Order, Yates upheld vital rule of law elements such as equality before the law, habeas corpus rights, and the supremacy of the law. The fact that she was dismissed for this, and replaced with an individual who would interpret the law as instructed by Trump, is immensely problematic.

Respect for the rule of law begins with the public
The Border Security EO was not the first assault upon the rule of law since the election of Trump, however; this ignoble privilege, sadly, belongs to protestors campaigning under the banner of #NotMyPresident. Much can be said about the Office of the US President and the respect that should – rightly – be accorded to it by members of the public, notably those who oppose its current holder. Respect for any elected office is, at its core, respect for the rule of law and for the established hierarchy of government, the supremacy of the law, and for our democratic principles – a point that cannot be forgotten when suitable or convenient. Barring widespread election fraud or other previously hidden aspect of casus fortuitus, to argue with the election of President Trump or to claim his is not the valid President – as unpalatable and unsavoury a character he may be – would be to cherry-pick democratic principles. It is vital for the United States to distinguish between attacks ad hominem and the undermining of its democratic process.

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Protestors in 2016

One might argue – as happened in 2000 – that the Electoral College does not represent the will of the people, or even analyse arguments for its reform, but one cannot dispute this result of an established democratic election process in the US – even with massive popular support – while maintaining clean hands and occupying the moral high ground; Egypt has shown us this much at least.

Introspection not isolation
Little consideration beyond the low-hanging fruit of spellcheck, however, seems to have been given to the internal respect that must be accorded to public office – put simply, the need for the holder of the office to respect the office they hold, and an acknowledgement that senior public office within an effective democracy – much less the head of state – is diametrically opposed to totalitarianism and the centralisation of powers: diplomatic protocol is not there arbitrarily, nor should it be abandoned in such fashion; outright lies must not be falsely disguised – a la ‘Doublethink’ – and verified as ‘alternative facts’, particularly when confidence in government is at an all-time low.

To dismiss senior legal advisors for contrary opinions, just as to dismiss senior diplomatic personnel for their affiliation to previous administrations, speaks to a systematic and deliberate dissociation with superior expertise and deeper experience in preference for superficial loyalty at all costs. It misses entirely the role of civil servants to advise based on the facts as they are, not ‘alternatives’ concocted to suit a particular line of discourse or political aim. Checks and balances, one might argue, run deeper than the mere separation of government into the three branches of the Executive, Legislature, and Judiciary; rather it is a spectrum that runs the gamut both internally and externally, and there is an inherent understanding in the election process and accordingly an obligation that a democratically elected leader shall not morph into a dictatorial tyrant.

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The Supreme Court’s explanation of “judicial review” in Marbury v. Madison [1803], carved on the wall of the US Supreme Court Building

Although, as Truman keenly noted, the buck stops with the President and both the prerogative and responsibility rest with an elected head of state to ensure his or her vision for their term is achieved to the greatest extent, limitations exist on the boundaries within which they must operate. Executive Orders such as Border Security and Immigration Enforcement Improvements are, as we have seen, castles in the sky waiting to be plucked from the air by the judiciary. It is the role of the Office of Legal Affairs to ensure legislation emerging from the President complies with both the law and the rule of law.

This is not to say, of course, that advisors are always right – legally or even morally. One need cast memory back only to the Bush administration – when ‘enhanced interrogation techniques’ were last employed – and the now infamous Yoo and Bybee Torture Memos, which had the support of the Office of Legal Affairs and of then-Attorney General John Ashcroft. At times, notably when pushing for a pre-determined outcome rather than evidence-based results, one makes catastrophic mistakes even where legal pretexts are presented.

More power = more need for the rule of law
Yet the concepts of the rule of law do incrementally gain significance with the seniority of the post in question, correlating – though distinct from arguments of consequentialism – with the size, breadth, and scale of applicability of the impact of their outcomes. The global uproar and backlash against US measures such as the immigration ban is something that an entire generation of democratic states such as the US, Canada, and the UK have rarely had to confront in their lifetimes. There have, of course, been inquiries into the legal compatibility of measures taken by states with international law – such as the Iraq Inquiry – but rarely do we need to challenge national government over the legality and parameters of powers exercised by leaders through judicial review – the recent Brexit case at the Supreme Court being a significant, and relatively unique, exception.

Hong Kong, for example, makes frequent recourse to judicial review of administrative procedures due to grave encroachment of mainland Chinese influence on the island and of the Hong Kong executive into legislative and judicial affairs; Turkey currently has no potential for curbing Erdogan’s expanding powers due to a complete dismissal of judicial immunity and abrogation of judicial independence; and the Arab Spring, with the exception perhaps of Tunisia, has resulted in the exact opposite of what many intended – the consolidation of power within the upper echelons of executive power and effective decimation of civil society groups through a series of decrees and laws.

The Economist Intelligence Unit recently downgraded the United States – for the first time in its history – from ‘full’ to ‘flawed’ democracy – a move that admittedly has been on the horizon for many years. What were once distant realities far detached from our quotidian lives – things that happen ‘over there’ – are beginning to shape into cautionary tales. After all, there is likely to be an abundance of ambitious ‘yes-men’ eager to comply with necessary U-Turns in order to advance personal political interests – the Cleggs and the Pences are far from rare; history, however, is both unforgiving and elephantine in its recollection of events, as Tony Blair will no doubt attest.

A full Republican legislature and executive translates into an absence of meaningful opposition – even within the Republican party – exemplified by a sympathetic Congress spoiling since early 2016 to punish Democrats after two terms of the Obama administration. Emboldened by this, it does not seem implausible that a continued and concerted disregard for the rule of law will continue, and accordingly, one can expect a continuation of the short-sighted “do as I say or do away with you” attitude of Trump’s first fortnight.

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