A Rule of Law or a Rule of Man?

“When we expect the law to be punctually executed, not one man in ten thousand will disobey it. It is the probable chance of escaping punishment that induces men to transgress.”

There is one way more whereby such a government may be dissolved, and that is: When he who has the supreme executive power neglects and abandons that charge, so that the laws already made can no longer be put into execution; this is demonstratively to reduce all to anarchy, and so effectively to dissolve the government. For laws not being made for themselves, but to be by their execution, the bonds of the society to keep every part of the body politic in its due place and function. When that totally ceases, the government visibly ceases, and the people become a confused multitude without order or connection. Where there is no longer the administration of justice for the securing of men’s rights, nor any remaining power within the community to direct the force, or provide for the necessities of the public, there certainly is no government left. Where the laws cannot be executed it is all one as if there were no laws, and a government without laws is, I suppose, a mystery in politics inconceivable to human capacity, and inconsistent with human society.

These two sentiments – the first attributable most probably to Richard Henry Lee, one of the so-called Anti-Federalists whom we have to thank for the inclusion of the Bill of Rights into our federal Constitution, and the second to John Locke, foremost 17th century political philosopher and natural rights theorist, lay at the heart of the fundamental binary question of societal rule of law versus rule of man.

By now most know that President Obama issued an executive order (13682) that will defer deportations of and legalize on a de facto basis potentially millions of illegal immigrants currently residing in the United States. Federal immigration policy, perceived as broken or not, is not the key relevant topic at issue here, however, though it does serve an exemplary purpose for context and discussion. What is of key concern in this post is the use of such executive orders by the president(s) to make decrees that effectively carry the force of law, or otherwise amend, alter, bypass, reject, circumvent, or altogether disregard duly passed legislation pursuant to the Constitution of these United States. The president himself subsequently acknowledged the fact that [he] just took an action to change the [immigration] law (emphasis added).

Executive orders of this ilk are, in a word, illegal under the “supreme Law of the Land.” As the opening provision of Article I explicitly states, All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (emphasis added). This is the enumerated and restrictive language proposed, passed, and ratified as part of the founding of the United States federal government in its present form and fashion, and there exists no legislative powers delegated to the Executive Branch of the federal government within this legal charter. Nor does the Constitution grant Congress the authority to delegate these or any other lawmaking powers through legislation, laziness, or other malfeasance.

Indeed, there exists only one social body that can ethically dismiss the execution of the law outside of constitutional process (be it state or federal, as is duly applicable), and that is the people themselves through the judicatory concept of jury nullification. No member of the federal government, as in this case, can ethically, legitimately, or legally swear to both uphold the chartering agreement which grants him/her their official title and powers and fail to literally execute those chartered and sworn duties at the same time. To do so invites a rule of man in explicit violation of constitutional charter and has the net practical effect of resembling, substantively and morally, a military dictatorship operating under a purely might makes right paradigm.

What is further troubling about the rule of man ethos is that, predictably and anarchically, this same power currently exercised will be inevitably used and abused by successive executives to circumvent, change, or otherwise corrupt the execution of passed legislation to suit one’s ends, rationalized by an appeal to tradition fallacy (“so-and-so did it first”), often to the chagrin and disapproval of previous transgressors (and their supporters). This concept is clearly foreign to President Obama as is very clear from the attached video (a must see).

(Source: LSUDVM)

(Incidentally, kudos to George Stephanopolous for being one of the few “mainstream” journalists who has access to the president and is willing to do his job at the same time.)

To be clear – and this will certainly rankle some readers who have made it this far – President Obama is not the most guilty perpetrator of executive overreach. Indeed, executive power grabs are a peculiarly bipartisan affair that generally trend toward Republicans collectively (though Franklin Roosevelt (D) was by far the most individually egregious perpetrator), characterized by all manner of justification and rationale. The so-called “Progressive” Era of American politics saw the greatest use of executive orders by presidents, averaging an aggregate peak of ~206 orders per year between Presidents Theodore Roosevelt and Harry Truman (this span includes five Republicans and three Democrats). The trend declined somewhat between Presidents Eisenhower and Carter (~68/year) but was still considerably higher than the founding and antebellum generations (~3/year). Unsurprisingly, the original era of American Big Government – the Civil War and subsequent Reconstruction Era – saw a then-spike in orders, again dominated by Republicans (~26/year; seven Republicans and three Democrats). Mercifully, modern presidents have seen a small decrease in orders relative to their late 20th century predecessors, but were/are still far too commonplace. President Reagan (R) averaged 48 orders per year; George H. W. Bush (R) averaged 42/year; Bill Clinton (D) averaged 46; George W. Bush (R) averaged slightly more at 36 than Obama’s current pace of 33 per year.

This factual history, along with the aforementioned video anecdote, illustrates the inherent ethical disconnect that the rule of man presents: it is bipartisan in its overreach and incrementally infringing, capricious, and very often arbitrary, and therefore impossible to reconcile with equal justice or law and order. What is legal one day could, nearly literally, be illegal the next with little to no warning (and vice-versa). How can consistency and equality of treatment or informed decision-making be applied in such an environment?

If the rationale of force-of-law executive orders for expediency and convenience were legitimate, then the president could easily use his aggravations with Congress to justify, say, setting aside the 2014 midterm election results altogether and simply appoint his own senators and representatives to the upper and lower chambers of Congress – no muss, no fuss. If the people allow him (or any future president) to ignore constitutionally passed laws, then what realistically keeps him from ignoring constitutionally elected public officials or their constitutional authority? Either a rule of law matters or it does not; if it does not, then the Constitution is meaningless, as are its chartered offices and titles of power such as the presidency itself.


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