Thursday, November 23, 2017
The multi-generational project of squaring executive governance with the rule of law is coming to a head. Hardly a week passes without commentators summonsing the rule of law ideal 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 guidance, this Article shines critical light on what the rule of law ideal cannot tell us. Moreover, this Article explains why even well-intended efforts to square the rule of law with trends in 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 commentators think and talk about the rule of law. 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.