What Is the Rule of Law?

The rule of law is under attack and risks collapse if the Trump administration continues to claim that the President has the authority to decide what is and isn’t against the law. But what is the rule of law? And what are the consequences when the rule of law is weakened or completely dismantled?

The rule of law isn’t an abstract concept; it is the principle that laws are applied in a consistent and predictable manner. In the United States, the rule of law ensures that the U.S. constitutional regime’s bedrock principles of separation of powers, democratic accountability, due process, and equal protection under the law can be relied upon.

Founding Father and second President of the United States John Adams famously wrote that the rule of law at its most essential means a “government of laws and not of men.” The rule of law is “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to the laws that are publicly promulgated, equally enforced and independently adjudicated.”

In other words, the rule of law anticipates that duly passed laws are enforceable against all people and institutions, including the government and government actors, no matter the position or office they may hold—including the President of the United States. When there is a dispute about the legitimacy or constitutionality of a law or its application, it is the role of an impartial court to evaluate the arguments and come to a reasoned conclusion to settle the dispute.

If the rule of law is a “government of laws and not of men,” then the destruction of the rule of law creates the inverse, a government in which the powerful decide how and against whom the law is applied.

Without the rule of law, laws would not be applied consistently. In a post-rule of law country, those in positions of power within the government and their allies could behave unconstrained by any law or regulation, while the politically marginalized and those who dissent could be subject to punishment without any notice that their behavior was against the law. They would be without any recourse to an impartial judiciary to determine whether their prosecution, conviction, or punishment was legitimate. Due process and equal protection of the law cannot exist where the rule of law has been dismantled.

The Trump administration’s efforts to dismantle the rule of law have come in many forms. The President has invoked the Unitary Executive Theory to claim that he has the absolute authority to decide what is and is not within the President’s Article II powers. The administration has insisted that its use of the Alien Enemies Act and the Immigration and Nationality Act to deport people without a hearing or any due process, even lawful permanent residents, is not subject to review by a court. The President has threatened to wield government power to undermine First Amendment speech and association rights and enforce speech codes against private actors, including universities and law firms, whose speech and association the President disapproves of.

And in a recent oral argument before the United States Supreme Court, U.S. Solicitor General D. John Sauer stated, “Generally, [the Trump administration’s] practice is to respect circuit precedent within the circuit, but there are exceptions to that.” This seemingly simple statement implies that the administration believes it has the authority to ignore legitimate court ruling with which it disagrees. These and so many other acts by this administration are all leading down a path toward the dismantling of the rule of law and the formation of the rule of (one) man.

The rule of law will cease to exist when the President can decide which laws apply to whom, can decide who, if anyone, enjoys the protections of our Constitution, or can decide whether to obey the order of a legitimate court. The rule of law is not an abstraction; it is the cornerstone of any government that aspires to serve the needs of its people, not the wants of the powerful.

Rule of Law