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David Rubenstein: Taking Care of the Rule of Law
Michael Ramsey

Recently published in the the George Washington Law Review, David Rubenstein (Washburn): Taking Care of the Rule of Law (86 Geo. Wash. L. Rev. 168 (2018)).  Here is the abstract: 

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.

And here is the conclusion:

Through the Obama-Trump case studies, this Article has focused critical light on what the rule of law ideal cannot tell us, and how it can lead us astray. For those holding out hope that the rule of law can and should still matter, it must be employed more scrupulously. When applied at the retail level of gauging the legitimacy of presidential policies, rule of law talk is not only unhelpful, it is potentially dangerous. Whatever value there may be in squaring the rule of law with trends in executive governance, it seldom prevents—and almost always accommodates—accreting executive power. If that is a concern, then we should talk less about the rule of law, and insist more on doctrines and institutional arrangements that might reverse the trend.

From the text, an example of the practical implications:

Under the Supreme Court’s mainstream preemption doctrine, only federal statutes and binding administrative action can preempt conflicting state policies.  In the recent landmark case of Arizona v. United States, however, the Court indicated (if not held) that state law was also preempted by the Obama Administration’s nonbinding enforcement policies. Now, under the Trump Administration, the question is resurfacing with new hue: Can Trump’s nonbinding executive policies likewise preempt state integrationist laws?

As I have argued at length elsewhere, a federalism doctrine that would foreclose the preemptive effect of nonbinding executive policies could, cross-structurally, limit executive power. At least in instances where the Executive wants national uniformity, preemption would depend on the existence of a congressional statute or binding regulation to displace state law. Either of those alternatives would yield far more accountability, transparency, and deliberation, than if the President can preempt state and local policies through nonbinding executive memoranda and litigation briefs.

To allow the Executive to have policies that are nonbinding on itself, yet binding on states, is a structural hypocrisy that our constitutional system should not condone. Executive policies are either law or they are not. But these policies should not simultaneously be deemed law (for purposes of preemption) and not law (for purposes of separation of powers). Something must give. If the Executive can have its cake, for separation of powers, and eat it too, for federalism, then what crumbs remain of our structural constitution?

As a general matter I agree with this approach.  The emerging model of judicial review of discretionary executive acts is not a promising one, and not one based on the Constitution's original design.  Rather, the original model is in my view executive discretion sharply bounded by law in the form of structural constitutional rules; compliance with the constitutional rules is judicially reviewable but the exercise of discretion is not.