The Trump Threat to the Rule of Law That is Not Getting Enough Attention

In the courts and in discussions by TV pundits, Trump’s violation of important Constitutional provisions—most notably the Due Process Clause and the First Amendment—are getting lots of attention. Indeed, that is true of my own Substack postings. The violation of the Constitution is obviously worthy of attention, but I think we are ignoring a more fundamental problem: Trump is taking unilateral action without even paying lip service to the statutes and regulations that govern these actions. This may be the most fundamental threat to the Rule of Law.

Perhaps I should start with an explanation of what we mean when we say “Rule of Law”. We love the claim that "we are a Nation of laws, not men”, but what does this mean? I think the easiest way to explain this is to describe what a government looks like in the absence of the Rule of Law. Such a government can act on whims. Without any process, it can issue new decrees that must be followed. It can issue vague rules and then claim that political enemies have violated them. It is government by whim that makes it difficult to plan ahead with any assurance. And government by whim can be very dangerous to democracy—as the Russian citizens under Putin have discovered.

For the early part of our history, there wasn’t much that the federal government did so Congress could provide the entire legal framework that prevented government by whim. Indeed, even today, Congress itself provides the legal standards that limit executive action. Examples that include detailed trade and immigration statutes and annual appropriations.

Statutes, however, are no longer the only source of law. Regulations, issued by agencies, are no less an important check on executive power. With the emergence of the Administrative State in the early 20th Century, statutes alone were no longer sufficient. Congress created new government bodies and charged them with governing entire industries with often vague mandates and legal standards enforced by stiff penalties. This created the danger of government by whim: without more detailed standards, it was hard for anyone to know what they needed to do to avoid getting in trouble. And even when agencies voluntarily announced more certain rules, they could do so without input from those who would be subject to these rules.

The solution to this problem was the Administrative Procedures Act (APA), which created a framework to make sure the Administrative State did not devolve to government by whim. There were several important elements to the APA that have evolved over time. First, when Congress gives the executive branch new authority, it generally requires that the executive branch issue detailed regulations setting out the rules that people must obey. Importantly, these regulations do not only bind the industries targeted by the regulation, they also bind the executive agency itself. If the regulations require a report to include specific sets of data, the agency cannot go after someone for failing to provide other data. And if the regulation sets out a process for enforcement actions—and most regulations do—the agency must follow this process. The result is a Code of Federal Regulations that consists of about 190,260 pages across 245 volumes. (By contrast the United States Code—which includes the laws passed by Congress—is only about 60,000 pages across 54 volumes).

Second, with only a few exceptions, executive agencies can’t simply issue these regulations by fiat. They have to follow a public process to solicit feedback from the public on the proposed regulations and they must address each and every comment before issuing a final rule.

Third, the APA provides a right of judicial rule to challenge any new regulation or the application of any rule in a particular case. More informal agency actions can be challenged if they are arbitrary and capricious. More formal agency actions can be challenged if they are not supported by substantial evidence.

There are some areas—most notably foreign policy—where the executive has broad discretion to take action without following the APA, but for the most part the actions of the President and his Administration are subject to this framework. It is a critical feature of the Rule of Law.

It is also a feature that the Trump Administrations is simply ignoring. The most recent example is the unilateral decision by the Department of Homeland Security to revoke Harvard's certification with the Student and Exchange Visitor Program (SEVP), effectively barring the university from enrolling new international students and potentially impacting the status of current students. As the masterful complaint filed by Harvard to contest this action, however, there are detailed regulations that govern SEVP, and they were completely ignored by DHS. Despite the fact that these regulations describe the “specific information” about foreign students that universities must provide to DHS, if requested, DHS is insisting on information and records outside of the regulatory requirements. And despite the fact that the regulations detail a process that DHS must follow in order to revoke a SEVP certification, DHS failed to follow this process and purported to unilaterally revoke Harvard’s certification by fiat. This is government by whim and not the Rule of Law.

To be clear, there are egregious First Amendment and Due Process violations in the efforts to revoke Harvard’s certification, but it no less egregious for the Trump Administration to simply ignore the regulations that apply to the certification. To allow the Trump Administration to ignore these regulations is to return to government by whim.

This is just the latest example of the Trump Administration’s blatant disregard the the law as reflected in the CFR or congressionally passed statutes. Federal employees were fired or put on administrative leave without following the process set out by statute and regulation. Grants and contracts were terminated without following the process set out in grant and contract rules.

So what is going on here? As Adam Cox and Trevor Morrison observed very early in the Administration in a Just Security post, the Trump Administration appears to be asserting that Article 1 of the U.S. Constitution gives the President to take action even in the face of contrary law:

Trump’s recent executive orders would completely upend that equilibrium. He appears to be asserting a roving authority to override or simply ignore binding federal legislation whenever it interferes with his policy aims — regardless of whether the context is one of foreign affairs or national emergency. It is as though Trump is reprising his claim from his 2016 nomination acceptance speech that he alone can address the vital needs of the nation, but extending it to say that he alone has a mandate to suspend the law in pursuit of his goals.

. . .

This all points back to the same fundamental principle: The President’s lawful authority to act depends greatly on what Congress has done. If Trump believes that the current state of affairs constitutes an emergency of some kind, and if he means to invoke special authorities granted to him by Congress to address declared emergencies, that’s one thing. But if he wants to use his sense of an emergency to contravene federal law, that is something else altogether – and altogether unconstitutional. A number of Trump’s new executive actions seem not even to acknowledge the difference, let alone offer arguments justifying the latter.

Ultimately, Trump’s claims to a roving presidential prerogative to transcend the law have no place in our system of government. To the extent those claims are challenged in litigation, the courts should reject them. And more broadly, we should all be concerned that these executive actions may be the first steps in the direction of a dangerous version of extralegal presidential unilateralism.

Consistent with this assertion, the Trump Administration seems to be taking the position that the President’s Article 1 powers can trump statutory and regulatory limitations in defending its actions in court. Fortunately, no court so far has accepted this remarkable argument.

The position is dangerous. Government by whim is dangerous. Actions to punish speech or to hurt political enemies may be hard to detect and stop if they aren’t constrained by clear rules. Due process can be ignored if rule by fiat is allowed. The failure of the Trump Administration to follow regulations needs more attention.