Executive Orders, Judicial Orders, and the Rule of Law

What does President Trump’s executive order on immigration and its aftermath mean for the rule of law?

 

 

Daniel Hemel
Daniel Hemel

What does President Trump’s executive order on immigration—and the fallout therefrom—tell us about the rule of law in the early days of the new administration? ProMarket looked across the Midway to the University of Chicago Law School for an answer to this query. But before we can say what Trump’s order and its aftermath mean for the rule of law, we need to know what the phrase “rule of law” means. And alas, the “rule of law” means different things to different people, with no consensus among legal scholars as to the semantic content of the phrase.

 

Larry Solum and others have suggested that the rule of law requires, among other elements, that “the legality of government action should be subject to test by independent courts of law.” To that we might add that the rule of law requires government officials to obey court decisions. And in this respect, the rule of law in the United States remained secure in recent years. Say what you will about President Obama and the rule of law, there was never any doubt that his administration would abide by the decisions that courts reached. So too for (most of) his predecessors.

 

But of course, judicial decisions do not implement themselves. President Andrew Jackson is purported to have said of the Supreme Court’s then-chief justice in 1832: “John Marshall has made his decision, now let him enforce it.” For a brief moment this past Saturday night, it looked like we might have been witnessing another Andrew Jackson moment, with Customs and Border Patrol agents at Dulles Airport reportedly refusing to comply with a federal judge’s stay order. With several days’ hindsight, it now seems like Saturday night was the result of chaos rather than constitutional crisis.

 

Will President Trump continue to comply with court orders as unfavorable decisions pile up? (And note that any administration is likely to lose quite a few court cases over a four-year term.) My own view is one of cautious optimism. At least in his public remarks, President Trump continues to trumpet the “rule of law” as a value—whatever he means by that. Perhaps more importantly, the federal employees who actually implement policies on the front lines are as likely to follow a court order as a contrary executive order (or, I think and hope, more likely). Andrew Jackson’s line can be thrown right back at him: “The president has made his decision, now let him enforce it.” Ultimately, if the president chooses to defy the courts, the question becomes whether front-line officials are more loyal to the executive or to the judiciary. On that question, if I’m President Trump, I don’t like my odds.

 

Note that the behavior of the executive and the judiciary may depend on their respective expectations as to outcomes on the ground. If President Trump thinks that Customs and Border Patrol agents will follow court orders over executive directives, then he is less likely to play the Andrew Jackson card. And by the same token, if federal judges and Supreme Court justices think that Customs and Border Patrol agents will follow executive directives over court orders, then they may be less likely to rule against the President (since any such ruling might reveal their own institutional impotence). While we rarely dwell on this fact (and have not needed to in the recent past), the reality is that the rule of law—by which I mean the rule of courts—rests in large part on the front-line federal employees who in the final analysis decide the outcome of interbranch conflicts. Customs and Border Patrol agents at Dulles and JFK and O’Hare do not just implement judicial and executive orders; they also influence the content of those orders through their willingness to enforce.

 

Nearly two weeks into Trump’s 208-week term, the rule of courts remains robust. Aside from isolated incidents, it appears that Customs and Border Patrol agents are abiding by court-ordered stays, and that President Trump has not instructed them to do otherwise. The first round goes to the judicial branch. But it is early still.

 

(Note: Daniel Hemel is an Assistant Professor of Law at the University of Chicago Law School)

 

Disclaimer: The ProMarket blog is dedicated to discussing how competition tends to be subverted by special interests. The posts represent the opinions of their writers, not those of the University of Chicago, the Booth School of Business, or its faculty. For more information, please visit ProMarket Blog Policy.   

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