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On Behalf of | Aug 7, 2019 | Firm News

“It is more proper that law should govern than any one of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws.”  Aristotle, Politics 3.16

If men were angels, no government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. James Madison, Federalist Paper No. 51 (1788).

In his passage on angels and men Madison provides a justification for government itself and, at the same time, offers the reason for constitutional constraints on political authority: government is necessary, but in the words of Aristotle, but must be retrained by the law which governs all.  Even the government.  In the words of Thomas Paine:

[L]et a day be solemnly set apart for proclaiming the charter; let it be brought forth … [so] the world may know, that so far we approve of monarchy, that in America the law is king.  For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other.  Thomas Paine, Common Sense, in Nelson F. Adkins, ed, Common Sense and Other Political Writings 3, 32 (Liberal Arts, 1953).  Emphasis added.

The rules of law which restrain the government are set forth in the U.S. Constitution.  In the words of the U.S. Supreme Court, “If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”  United States v. United Mine Workers, 330 U.S. 258, 312 (1947) (Mr. Justice Frankfurter, concurring in the judgment).  This allows “[e]very act of government may be challenged by an appeal to law.”  Id. at 308.

So does the rule of law allow one person have a legal right to disregard the law because the law is not convenient? Does he have a legal right to disregard human rights?  What happens if that person is the president?  This is precisely the issue in State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (9th Cir. 2017) where the lawfulness and constitutionality of Executive Order 13769 was challenged.  Judge James L. Robart found that the ‘Muslim ban’ violated four amendments to the US constitution: the First, Fifth, Tenth, and the Fourteenth. Namely, amongst other things, Judge Robart found that Executive Order 13769 violated the requirement of equal protection under the law, finding that the Trump administration showed ‘discriminatory treatment based on their country of origin and/or religion, without lawful justification’. Judge Robart additionally reaffirmed the Tenth Amendment, showing that the Federal Government only has the legal rights delegated to it by the Constitution, and since this Executive Order 13769 was in violation of the constitution, it simply could not be legitimate.

During his campaign, President Trump made it clear he was not happy with cities that held themselves out as sanctuaries, suggesting, among other things, that they facilitate crime.  Just five days after taking office, Trump issued an Executive Order—entitled “Enhancing Public Safety in the Interior of the United States”—that directed relevant cabinet officers to deprive “sanctuary jurisdictions” of federal funding and to “take [additional] appropriate enforcement action” against them.  In City and County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) the court was confronted with the issue of whether “in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called “sanctuary” cities and counties.”  Id. at 1231.  The Court found that “under the principle of separation of powers and in consideration of the spending clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization.”  Id.

Clearly, America is at its best when it submits to the rule of law not the rule by, in the words of Mr. Justice Frankfurter, a specific tyrant.  As Justice Sonia Sotomayor stated when she was nominated to the U.S. Supreme Court, “the rule of law [is] the foundation for all of our basic rights.”