January 30, 2020

Geese, Sauce, and the Rule of Law

Robert N. Weiner


CHAIR’S COLUMN – July 2018


Robert N. Weiner


Robert N. Weiner is Chair of the ABA Section of Civil Rights and Social Justice and a Partner at Arnold & Porter Kaye Scholer LLP The Section on Civil Rights and Social Justice


 

GEESE, SAUCE, AND THE RULE OF LAW

 

President Trump has urged that illegal immigrants be denied due process and summarily deported.  However, that tweedict (a hybrid of a tweet and an edict) faces at least one pesky impediment:  the Fifth Amendment, providing that, “No person shall . . . be deprived of life, liberty, or property, without due process of law.”  How would the Administration respond?   Probably with something along the lines of, “The Fifth Amendment applies to persons, not immigrants.”  

And if the Trump Administration whets its appetite on denying due process to illegal aliens, why would it stop there?  Why not also deny those rights to U.S. family members harboring illegal aliens?  According to Trump, those people are ravaging our cities with crime, and we have to stop them.  The statistics showing that immigrants have a lower crime rate—they are just fake news.

Moreover, does anyone really think that if President Trump thought he had a choice, he would support due process rights for African-American athletes who do not stand for the national anthem?  His position would be both pugnacious and predictable:  “If they don’t respect our flag, they don’t deserve the protections it symbolizes.” 

And now that the Supreme Court has willfully blinded itself to the starkly obvious truth about the Administration’s Muslim travel ban—that it is a Muslim travel ban—would it be surprising if Trump seeks to mistreat or demonize Muslims who are already American citizens?

Before we slip down this slope, the President would do well to remember that his actions set precedents that his successor could deploy.  The next President, too, might find occasions to dispense with due process.  Unburdened by the requirements of notice and a fair hearing, for example, the new President might turn to the Trump playbook and decree an automatic jail term for anyone who brags about grabbing female crotches.  Or the future President might revoke the due process rights of any person who has met with a hostile foreign government to gather “dirt” on an opponent in a national election.  Or maybe the next President would see no need for a trial before jailing any official who fires the prosecutors investigating him.  These scenarios are only partially tongue-in-cheek.  Before dismissing them, consider whether our current predicament would have seemed plausible two years ago.

The value of the rule of law lies in its attributes of equality, consistency, and fairness.  The rule of law rests on legal principles that apply equally to all, that are neither arbitrary nor ad hoc, and that ensure fair consideration after an opportunity to be heard for parties confronting the hostile power of the state.  The rule of law protects all of us, shielding the most vulnerable people from the despot, and the despot from himself. 

A scene in the movie, A Man for All Seasons, dramatizes this point.  William Roper urges his father-in-law, Lord High Chancellor Sir Thomas More, to arrest the man whose lies will result in More’s execution.  More refuses, as the man has not yet violated any law.  Incredulous that More would allow the law to protect “the Devil,” Roper proclaims that he would “cut down every law in England” to defeat the Devil.  More shoots back,

And when the last law was down, and the Devil turned round on you, where would you hide, . . . the laws all being flat?  This country is planted thick with laws, [and] if you cut them down. . . do you really think you could stand upright in the winds that would blow then?

The lesson is as relevant now as it was in the 16th Century.  Displacing the rule of law for immediate political gain is not only abhorrent; it is also shortsighted and irresponsible.

As a lawyer, making a living predicated on the rule of law, will you be a passive spectator to its downward spiral, or will you apply your legal skills to defend the system that has sustained you and the democratic process?  Will you be defeated by the illusive insignificance of a single protest, or buoyed by prospect of galvanizing millions of others?   

“Galvanizing” is what we do at the Section on Civil Rights and Social Justice—educating, advocating, and providing a forum for advocates to inform and instruct others across the country.  For example, within days of the Attorney General’s announcement that victims of domestic abuse would no longer be eligible for asylums, we produced a well-reviewed webinar on the new policy.[1]  Hundreds of lawyers registered for the event.  Later that month, we held another webinar on the Administration’s policy of separating families at the border.[2]  

By itself, involvement in our Section may not satisfy your desire or your obligation to defend the rule of law.  But it is, at the very least, a gateway to doing so effectively.  I urge you to use this gateway,  But even if involvement in the Section is not your chosen means to stand up for the rule of law, do something.  Inactivity is no longer an option.

 

 

 


[1]“The Impact of Attorney General Sessions’ Decision to Deny Asylum to Victims of Domestic Violence and Where We Go from Here,” June 22, 2018.  See a recording of the program at this link.

[2] “Trump’s Policy of Separating Famlies at the Border:  U.S. Law, Court Rulings, and Administrative Policy (July 12, 2018).  Register at https://attendee.gotowebinar.com/register/7301638308783590913.