Today should be ‘Rule of Law Day’

Today is Law Day, America’s 1950s-vintage response to May Day, a day most people associate with parades through Red Square, if that. By statute, Law Day, U.S.A. is “a special day of celebration by the people of the United States . . . in appreciation of their liberties and the reaffirmation of their loyalty to the United States and of their rededication to the ideals of equality and justice under law in their relations with each other and with other countries; and . . . for the cultivation of the respect for law that is so vital to the democratic way of life.” According to the American Bar Association, it is an opportunity “to celebrate the role of law in our society and to cultivate a deeper understanding of the legal profession.” With competition like Thanksgiving, Presidents Day, Labor Day, Memorial Day, and the religious holidays, it’s hardly a surprise that Law Day has never made it to the Top 10 on the American calendar.

Law Day needs a facelift, and I suggest we begin by renaming it Rule of Law Day, because the Rule of Law itself — a phrase we usually employ when talking about other countries — is as much under siege as our society as a whole is because of the COVID-19 pandemic. And yes, it’s about President Donald Trump, his administration and his enablers.

Many and varied are the controversies the Trump administration has spawned. They range across the full breadth of government programs and powers, and it is understandable that some of them were so impossible to overlook that he became only the third president to be impeached by the House of Representatives.

But it is important to look past the particulars, some of which were at issue in the impeachment process, and see the disturbing pattern that emerges. It is not the sheer number of norm violations, or Mr. Trump’s rock-bottom fecklessness, but the fact that those violations are so varied and pervasive that they call into question the very notion of regularity in the conduct of government. A few examples tell the tale:

• Congress refuses to appropriate funds for a given purpose (Mr. Trump’s wall), yet he finds a way to reallocate funds appropriated for other purposes to that end. The power of the purse is probably Congress’s core power, aside perhaps from impeachment and removal, but he has thwarted it.
• The Senate has power to confirm appointments, yet Mr. Trump has thwarted its power to advise and consent by not sending up names, relying instead on a regiment of “acting” officials.
• The Constitution carefully delineates checks and balances that circumscribe presidential powers, yet Trump has claimed total power in the current pandemic crisis.
• The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” yet Trump has attempted without authority to supplant the elected leaders of the States.
• Despite his duty as head of the Executive Branch, he has spent excessive time away from the Seat of Government. Of course, modern communications make his physical presence at all times less urgent, but he has carried this to extremes, turning the White House into a part-time residence.
• The First Amendment protects freedom of the press, but Mr. Trump and his White House have effectively declared war on the mainstream media.
• He has encouraged others to violate the law by urging violence at his rallies, granting pardons to individuals convicted of or charged with war crimes, dangling pardons before others, and encouraging people to “liberate” three states by violating orders in response to the COVID-19 pandemic.
• He has threatened to adjourn Congress without any colorable basis in the Constitution.
• He has threatened judicial independence by repeatedly criticizing judges in personal terms.
• Trump has created a chilling effect on Congress’s continuing power to impeach and remove him by shamelessly engaging in reprisals against witnesses who testified against him or provided other evidence in connection with his impeachment.
• He has thwarted the critical check on presidential power provided by the Inspector General system by removing the Intelligence Community Inspector General for having properly forwarded to Congress a credible whistleblower complaint. 

From these trees a forest clearly emerges. When the core norms of American government are toppled or disregarded, it is not simply a question or one or another discrete feature being eroded; it is the underlying proposition that government is subject to binding legal limits.

A president has a duty under Article II of the Constitution to take care that the laws are enforced. A president also has a duty to uphold the Constitution itself. A president who treats the very notion of law as a trifle violates those duties.

Dedicating one day a year to the Rule of Law will have no effect on Mr. Trump, who is obviously tone deaf to these issues, but it may have a lasting salutary impact on the country to be more mindful when we elect our leaders.

Eugene R. Fidell teaches at Yale Law School and is of counsel at the Washington, D.C. law firm Feldesman Tucker Leifer Fidell LLP. He edits the blog Global Military Justice Reform, globalmjreform.blogspot.com, and is on the steering committee of Lawyers Defending American Democracy.