Executive action and the rule of law

Published 8:22 pm Friday, February 27, 2015

For much of human history, governments and their laws were based solely on who had the power.

The American experiment turned that notion on its head. Rather than on the rule of power, our founders established the United States of America on the rule of law. It was a somewhat novel concept in practice, that those governed by the law were both subject to it and protected by it. Most exceptional, however, was the system of checks and balances the rule of law created — it separated the power.

Today we often think of the rule of law in terms of the court system, assessing how effective it is, whether judges are fulfilling their roles as charged, and whether the law is interpreted accurately. Indeed, the conversation about “restoring the rule of law” is partly about restoring courts to their constitutional role of protecting individual liberties. But at its core, the rule of law is about protecting a set of immutable rights that are anchored in our Constitution and birthed by concepts in the Declaration of Independence.

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So when President Obama said last year he would no longer enforce U.S. immigration laws and later allowed millions of illegal immigrants to stay and work in the U.S. without a vote of Congress, he didn’t just usurp power belonging to other government branches. He sent a message that the rule of law doesn’t matter. The implications of such an action stretch far beyond the White House, the halls of Congress or even the steps of the Supreme Court.

Today the short-term debate in Congress is over funding for the Department of Homeland Security and rolling back executive actions on immigration. DHS funding was set to expire yesterday, and Congress appeared to lack the consensus necessary to avoid a partial shutdown.

Many people are questioning political strategies and what Congress should do next. But this debate is about much more than DHS funding or even the immigration crisis. It’s about whether any president has the authority to selectively enforce and unilaterally rewrite democratically passed laws. It’s about whether the president is above the rule of law.

It’s difficult to surmise all of the levels of society the concept of rule of law touches, in part because we expect the rule of law to be there. It’s one of those things that you may not notice because it’s built into the inner machineries of our government and our way of life in America. It isn’t perfect, by all means. But on the whole, it works, allowing freedom in property, business, family, education, health, to name a few.

But a nation built on the rule of law requires interdependence. We call it separation of powers, but what that really means is that through a system of checks and balances, authority is shared among three branches to ensure the government itself is held accountable to the law.

That interdependence assumes and assures no one has the upper hand, except the Constitution itself.

This is why unilateral action by the executive to exert authority that properly lies with the legislature is so egregious. It sets a standard opposite of the intentions of our founding documents. It gives future presidents authority to selectively enforce and unilaterally rewrite democratically passed laws. It lays the groundwork for ironhanded governing.

This should frighten all Americans, no matter where they are on the political spectrum and regardless of where they stand on the policy issue at hand.

Our institutions, our Constitution, and our nation’s foundation are built on the rule of law. To chip away at the rule of law is to weaken all other pillars of our society.

The rule of law isn’t a piece of our government structure. It is the guardian thread that runs through every fiber of our government structure. Rule of law is a necessary condition for justice and liberty to work. Without it, our government will crumble.

Congressman J. Randy Forbes represents Virginia’s Fourth District, which includes Suffolk, in the U.S. House of Representatives. Visit his website at forbes.house.gov.