Scott addressed the most glaring flaws with Damon Linker’s column the other day, but I want to discuss another one: his invocation of his commitment to “the rule of law” as a reason to oppose this executive action:
The rule of law is far more about how things are done than about what is done. If Obama does what he appears poised to do, I won’t be the least bit troubled about the government breaking up fewer families and deporting fewer immigrants.
As Scott said, this doesn’t stand up to scrutiny first and foremost because the case that Obama is operating outside the law is simply incorrect, as Russell Arben Fox, who holds a view congenial to Linker’s, has acknowledged in comments. But there are additional reasons to be troubled by it. I confess I’m increasingly dubious of the way the rule of law is used in political debates; Judith Shklar’s observation that the rule of law “may well have become just another self-congratulatory rhetorical devices that grace the utterances of Anglo-American politicians” rings true to me, especially with an “and pundits” added. But let’s consider it more carefully. The conception of the rule of law advocated here is one that appears to only apply to how the different parts of government relate to each other, and not how the government relates to the governed. This is consistent with an old and venerable tradition—one that predates liberalism and democracy—in ‘rule of law’ thinking; that the rule of law is satisfied when the monarch (and his agents) operate in a manner consistent with the law, whatever that may be.
But the rule of law is an essentially contested concept, and there are other uses of it in circulation. In a liberal and democratic world, we have some very good reasons to care about how the law governs not just the interaction of different parts of government with each other, but how it shapes the interactions of the different parts of government with the governed. Jeremy Waldron:
There may be no getting away from legal constraint in the circumstances of modern life, but freedom is possible nevertheless if people know in advance how the law will operate and how they have to act if they are to avoid its having a detrimental impact on their affairs. Knowing in advance how the law will operate enables one to plan around its requirements. And knowing that one can count on the law’s protecting certain personal property rights enables each citizen to know what he can rely on in his dealings with other people and the state. The Rule of Law is violated, on this account, when the norms that are applied by officials do not correspond to the norms that have been made public to the citizens or when officials act on the basis of their own discretion rather than norms laid down in advance.
On this account, it is difficult to square existing immigration law with the rule of law: it authorizes the deportation of many millions of current settled residents, while a) explicitly authorizing significant administrative discretion, and b) only appropriating the resources for a small fraction of those eligible to be deported in any given year. As Ilya Somin puts it,
To the extent that the rule of law is in jeopardy here, it is because the scope of federal law has grown so vast that no administration can target more than a small percentage of violations, thereby unavoidably giving the president broad discretion.
In other words: when statutory law is simply too vague, broad, or general to authorize a predictable pattern of governance as written, the rule of law is enhanced when administrators prioritize and systematize with administrative law, assuming they do so in a manner consistent with the spirit and general intent of the law and other constitutional norms.
I’ve written about Joe Carens excellent work on the political theory of immigration here before. One of his smarter pieces of non-ideal theory is this defense of what he calls the ‘firewall’ requirement for states that have a population of irregular migrants. Carens assumes for the sake of argument that states have the right to deport such individuals. However, insofar as they’re not deporting them, they ought to have a number of basic legal rights and protections in common with residents in general. This can be framed as a matter of basic human rights, as Carens does, but it’s also a rule of law issue—for one’s life to be governed predictably by law one must have access to the parts of the state that provide for various protections. But the threat of deportation cuts of access to what the rule of law provides:
The fact that people are legally entitled to certain rights does not mean they actually are able to make use of those rights. It is a familiar point that irregular migrants are so worried about coming to the attention of the authorities that they are often reluctant to pursue legal remedies and protections to which they are entitled, even when their most basic human rights are at stake….States can and should build a firewall between immigration law enforcement on the one hand and the protection of basic human rights on the other. We ought to establish a firm legal principle that no information gathered by those responsible for protecting and realizing human rights can be used for immigration enforcement purposes. We ought to guarantee that people can pursue their basic rights without exposing themselves to apprehension and deportation.
Carens’ firewall does not, unfortunately, exist (although many municipal governments have moved in this direction) and Obama’s executive order doesn’t create it. But for those eligible, it contributes to the same goal; it makes it more possible and likely that they’ll have reasonable access to the predictability and protections that the rule of law affords.
While we can acknowledge its important role in the history of the concept, it’s difficult for me to see any good reason for the use of a strictly formal concept of the rule of law indifferent to the nature of government/governed interaction today. It is the character and quality of those interactions that cause me to care about government in the first place. Linker’s clumsy attempt to use the rule of law against the Obama administration in this case highlights the shortcomings of that particular version of the concept.