The Rule of Law Is on Life Support
In our Divided States, justice is unjust, government agencies are corroded, and the Executive Branch is untouchable. This is not what democracy looks like.
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Right now, it’s tough to separate hyperbole from the legitimate fear as to whether we’re living through the end of American democracy as we know it. No, we probably won’t turn into Nazi Germany in the near term, though some days that possibility seems likelier than others. Instead, we’ll live through a long, slow, increasingly terrifying destruction of the institutions that prop up our democracy, all while pretending we remain a democracy. So what does it look like to live through the fall of the rule of law?
The rule of law is most succinctly explained in John Adams’s statement that America is “a government of laws, not of men. [sic]” A lengthier explanation comes from Professor Robert Stein, the Everett Fraser Professor of Law at the University of Minnesota Law School. He notes that the rule of law means the law is “superior to all members of society, including government officials vested with either executive, legislative, or judicial power,” the law is “known, stable, and predictable.” He also notes that societies characterized by the rule of law limit government discretion so that the law is applied in a non-arbitrary way. We’re losing all those things and replacing them with a politicized judiciary, a refusal to uphold democratic norms, an eviscerated executive branch, and ruling by tweet and whim.
It’s important to document—to bear witness to, really—the events that take us further and further from believing the center will hold. It’s almost impossible to keep track of the day-by-day, drip, drip, drip of actions that undermine our faith in government, but it’s possible to talk about it in broad terms.
In some ways, you could say that this really started with Mitch McConnell. After Justice Antonin Scalia’s death in February 2016, McConnell refused to even bring Barack Obama’s Supreme Court pick, Merrick Garland, to the floor. He did so under a principle he invented on the fly: that the people needed a “voice” in the process. He later bragged that it was one of his “proudest moments” to have blocked Obama from filling the Supreme Court vacancy. It was a breathtaking abdication of the responsibilities of the Senate, but GOP senators thought of it as a noble gesture: It wasn’t their job to follow the rules. It wasn’t their job to advise and consent. It was their job to make sure a conservative Republican got Scalia’s seat.
While McConnell was bragging about refusing to do his job back in 2016, the vicious presidential election was proceeding apace. This election hinged on the denizens of one party demanding that the candidate for the other party be locked up. American politics have, in the past, typically been characterized by a refreshing lack of demand that electoral rivals or the losers of elections be imprisoned. No more.
Trump devotees still really want to see Hillary Clinton in jail, regardless of the fact that the electoral process was manipulated enough that their guy won anyway. In contrast, during his presidency, Obama was so concerned that he not be perceived as being hostile to Bush-era individuals that he declined to prosecute the CIA employees who engaged in torture … and also decided to keep Bush appointees like James Comey employed.
There are other countries that have a long and ignoble tradition of jailing the losers. This doesn’t always happen directly. Instead, there are usually trumped-up (pardon the pun) charges or other allegations of wrongdoing that lead to imprisonment. In Ukraine, Viktor Yanukovych, a strongman, a Putin ally, and a Paul Manafort client, made sure his electoral opponent, Yulia Tymoshenko, was jailed on what many thought were politically motivated charges and served three years. In Egypt, back in 2005, then-president Hosni Mubarak jailed a leading opposition figure, Ayman Nour. Nour was convicted in a forgery case that pretty much everyone saw as a frame-up, necessary because Nour had the temerity to challenge Mubarak. And then there’s Russia, where Vladimir Putin, unsurprisingly, has a habit of detaining and jailing —and probably murdering—anyone who gets in his way politically.
Meanwhile, GOP politicians continue to be relentless in calling for the prosecution of Democrats and any non-Democrats who they feel are getting in the way of Donald Trump. Of course, they want former FBI Director James Comey fired (as does Trump) regardless of the fact that he likely tipped the election to Trump. Check out Claudia Tenney, a congresswoman who represents upstate New York. She’s actually fund-raising off a demand that Comey, Hillary Clinton, and former Attorney General Loretta Lynch should be locked up. Look at West Virginia, where Don Blankenship—himself a literal convicted criminal—is running for Senate and declaring that we don’t need to investigate Trump. Instead, you guessed it, we need to lock Hillary up. And 11 members of the House sent a letter to Attorney General Jeff Sessions demanding that the FBI investigate Clinton, Comey, Lynch, and more.
And then there’s the utter politicization of the Department of Justice. Though Special Counsel Robert Mueller’s investigation is still hanging on by a thread, elsewhere we see the DOJ capitulating to the GOP. Witness the speed with which the DOJ agreed to give James Comey’s memos to Congress thanks to a Republican demand, even though the memos relate to an open investigation.
The DOJ is also asking the United States Attorney’s Office for Washington D.C. to consider prosecuting former Deputy Director Andrew McCabe for lying under oath about whether he authorized a 2016 release of information to the Wall Street Journal about the Clinton email probe. Adding insult to injury, McCabe was fired 26 hours short of his retirement, a petty action taken in large part because it significantly impacts McCabe’s retirement benefits.
We’re also watching the erosion of norms when it comes to who gets appointed to run government agencies. That sends a signal that the work of the government isn’t important at all. That’s neatly in keeping with Trump’s strongman style: only Trump alone can fix it—whatever “it” may be—and everyone else is irrelevant. These are key signifiers of the erosion of the rule of law as well: Agencies don’t matter, the people who run it don’t matter, nothing really matters except Donald Trump and what he thinks or wants.
Yes, cabinet appointments are always political, but even in the darkest years of, say, George W. Bush, you still had experienced people like Colin Powell as Secretary of State, rather than short-timer Rex Tillerson. Even when you had conservative nightmares like Rod Paige leading an agency—in this case, the Department of Education—Paige had at least been a teacher, a coach, a school board trustee, a college dean, and a superintendent in his 40-plus-year career. Current Secretary of Education Betsy DeVos? Well, she loves charter schools and religion and wants to see public education decimated, but she doesn’t really know a thing about education.
Betsy DeVos isn’t the only one, of course. Appointing radically unqualified people to government positions has become the norm in the Trump era. Look at Ben Carson at HUD, or Rick Perry at the Department of Energy. Worse, lower-level positions have become nothing but opportunities for Trump campaign workers and hangers-on to get sinecures. It started with Trump making his daughter and son-in-law, two people with no government or foreign policy experience whatsoever, senior White House aides. But nepotism runs rampant elsewhere too. Currently, there are at least 20 families where multiple members of those families hold government positions. Under Trump, the Presidential Personnel Office is staffed by a college dropout with multiple arrests and a Marine Corps reservist with … multiple arrests. Other people that staff the office, which is responsible for the hiring of thousands of government positions, got the gig by having been people that worked on Trump’s campaign.
There are also no consequences if Trump employees, including Cabinet heads, fail at their jobs or use those jobs as nothing but opportunities to grift. And let’s not forget that the staff turnover in the Trump administration is unprecedented. Some people leave, but many have been forced out by Trump thanks to his capricious style of governing: If you don’t pay sufficient fealty to him, you’re out.
Taken together, these things significantly undermine the strength of the executive agencies, entities that are really the unsung heroes of democracy in America. Agencies provide regulations that help ensure that laws are fairly applied and that certain societal goals, such as ending discrimination and protecting workers, are enacted. It’s no secret that Republicans have always hated regulations that restrict banks from scamming customers, that stop companies from wrecking the environment, and stop employers from screwing over employees. Under Trump and the GOP-controlled Congress, regulations are becoming increasingly hard to enact. And then you’ve got Trump using a stroke of his pen via executive orders, rather than the legislative process, to undo regulations.
Trump also uses executive orders to enact patently unconstitutional things like the Muslim travel ban and announces major policy changes via random statements on Twitter, like the trans military ban. This is pure strongman behavior too, and anti-democratic. It means that the rules governing the country are subject to the whims of one man and his vicious, racist, homophobic views.
By many measures, our democracy is failing. The Economic Intelligence Index no longer classifies the United States as a full democracy. Instead, we’ve dropped into the category of “flawed democracy.” At 21st on the list, we’re now well below countries like Norway and the U.K. and instead hanging out with places like Chile, Botswana, and Mexico. Why? It’s thanks to things like increasingly polarized congressional districts, a growing income divide, and poor scores on categories like “functioning government.”
We’re taking a similar hit in the Rule of Law Index, which measures eight factors: “constraints on government powers, absence of corruption, open government, fundamental rights, order and security, regulatory enforcement, civil justice, and criminal justice.” There, the U.S. ranks 19th and fell one spot this past year. When you look at sub-factors like civil rights, we drop to 31st. Discrimination in our criminal justice system is running rampant, civil justice isn’t accessible, we have lengthy delays in the regulatory process, there’s relatively high corruption in the legislature, and we’re not so great at imposing sanctions for official misconduct. The last is no surprise, given that Trump is flouting ethical norms right and left, and we’re learning that there is really no consequence for doing so.
So what does our slide into the dissolution of the rule of law look like? It looks like distrust of the workings of government, a judiciary staffed by radical conservatives who want to decrease hard-won rights, and a loathing of the (largely imaginary) “deep state.” It looks like replacing our belief in the sanctity of government institutions and norms with the belief that only Trump is pure enough and strong enough to run the country.
It looks a lot like where we are right now.
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