Taking Care of the Rule of Law
64 Pages Posted: 11 Nov 2017 Last revised: 31 Jan 2018
Date Written: November 7, 2017
The project of squaring the rule of law with executive governance is coming to a head. Hardly a week passes without commentators summoning the rule of law to pass judgment on the legitimacy or desirability of some executive action. But the more we talk about the rule of law, the further it seems to slip away. Rather than look to the rule of law for answers, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, the Article explains why even well-intended efforts to square the rule of law with trends in executive governance can be counterproductive. To anchor these points, the Article presents comparative case studies of President Obama’s and President Trump’s signature immigration policies and the rule of law debates surrounding them. The Obama-Trump juxtaposition offers a portrait of some disquieting trends, not only for presidential administration, but also in how we think and talk about the rule of law ideal. This Article intervenes with some prescriptions moving forward — including away from rule of law talk, and towards doctrines and institutional arrangements that could more effectively check presidential power.
Keywords: Rule of Law, Presidential Administration, Executive Power, Obama, Trump, DACA, DAPA, Travel Ban, separation of powers
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