The rule of law consists of a body of procedural standards. It requires those holding and exercising the authority to make, interpret, apply, and enforce laws to operate in accord with legal requirements.
As a body of procedural standards, the rule of law is not romantic. It doesn’t turn out crowds in the street. And abiding by its requirements can be tedious—even frustrating. The demand to adhere strictly to legal principles sometimes stands in the way of achieving what we regard—perhaps entirely rightly—as important substantive goals. After all, substance is what ultimately matters, right? We will not want to live with the consequences of abandoning the rule of law.
Now, to be clear, the rule of law is not the rule of lawyers. It is not the rule of judges. It is not the rule of any particular government official. Whether someone is an executive officer, a legislator, or a judge, respecting the rule of law means staying properly within one’s constitutional lane even where one disagrees with the substance of what a coordinate branch of government is doing. It means respecting the lawfulness of decisions and actions one thinks are misguided or impede the achievement of what one regards—again, perhaps rightly—as extremely important objectives.
Judges, no less than other officials, are morally obligated to observe the rule of law, and history (including our own) is replete with cases of lawless judges imposing their will under the pretext of applying constitutional or other legal norms. Some notorious examples are Dred Scott v. Sanford, the pro-slavery decision that set the stage for the Civil War, and Roe v. Wade, striking down our nation’s laws protecting unborn children from abortion. So, respect for the rule of law does not mean that judges are entitled to do whatever they want. Nor does it mean that judges are always right. Nor does it mean that they always get the final say. But executive and legislative respect for the lawful rulings of courts validly exercising jurisdiction is a key component of the rule of law in systems like ours—just as judicial respect for lawful exercises of executive and legislative authority is such a component.
President Trump, like all modern presidents, is testing the limits of executive power under Article 2 of the Constitution. Sometimes he, like those other presidents, will be within those limits, even if he is getting near the edge; other times, he will cross the line. When he crosses the line, it is the duty of judges, whether they are Trump, Biden, Obama, Bush, or Clinton nominees, to rule against him. It is not the duty of judges nominated by a president to rule in favor of that president or his position in litigation in which the president is a party or has an interest. It is their duty—the duty of all judges in all cases—faithfully to apply the relevant common law norm, statute, or constitutional provision to the facts of the case. When the president is operating within the scope of his powers, it is the duty of judges to rule that his actions are constitutionally permissible, whether or not the judge happens to agree with those actions.
One of the achievements of President Trump’s first term, of which he should be proudest, is the appointment of excellent judges at all levels of the federal courts. Those judges, like other human beings—and (let us not forget) like presidents—are fallible and will not always get things right. But the vast majority of Trump nominees, their critics’ objections notwithstanding, are faithful constitutionalists. The President’s personally attacking them when they rule against him or his administration (and his utterly absurd defaming of Leonard Leo as someone who “probably hates America”) is worse than unseemly.
Every president, including the current one, will sometimes be wrong on questions of the scope and limits of his authority. In those cases, it will be the duty of the courts to uphold the Constitution and the rule of law by deciding the case against the president—ruling that he has exceeded his constitutional powers. Every president, including the current one, will sometimes be wrong.
In doing that, you will show the public that your loyalty, too, is first and above all else to the Constitution and laws of our nation. That will only enhance your stature and credibility. For any president, it is the path to greatness.
