What Is the Rule of Law and Why Is It a Core Principle?

One of ORL’s core principles is support for the rule of law. The “rule of law” sounds like something we should all support, and yet it is under attack right now by President Trump and his supporters. What is the rule of law exactly? And why is it foundational to our democracy?

The rule of law is present where citizens are governed by clear and specific laws that apply equally to all. Put another way, people are ruled by laws and not by men, and no one is above the law.

A clearly written law specifies what behavior is legal and what is not. People subject to the law know what they need to do to avoid prosecution. A law that grants discretion to administrators—or one that is so vague that it effectively grants discretion—leads to rule by men rather than law.

For example, where the speed limit on a highway is set at 55 miles per hour, you are governed by a law written through a constitutionally established legislative process, and the very specificity of the law shows you how to avoid a ticket. By contrast, if the law gives state troopers discretion to issue tickets for driving at an “excessive speed,” the speed limit is whatever the trooper judges to be excessive at that moment, and you are subject to rule by men rather than law.

President Trump violated this principle when he sent ICE officials into American cities to round up illegal immigrants, armed with broad mandates to do whatever they believe is necessary and with assurances of absolute immunity. This dangerous grant of discretion to ICE agents makes everyone they encounter unsafe. Under the rule of law, individuals should be able to avoid arrest and prosecution by obeying clear laws. In far too many cases, ICE officials have physically abused and detained legal immigrants who have met all the requirements of the law, and they have even killed American citizens.

No one is above the law. Administrative discretion is not the only danger here. President Trump considers himself above the law, claiming (inaccurately) that Article II of the Constitution allows him to do anything he wants. He has pushed the limits of his powers at every opportunity and harshly criticized the courts whenever they strike his actions down. To make matters worse, the Supreme Court case granting broad immunity to presidents (Trump vs. the United States) violated this principle of equality of treatment by making all presidents—not just President Trump—above the law under a wide range of circumstances.

Making presidents above the law is dangerous for at least two reasons. A decision process that includes multiple viewpoints is more likely to produce good policies than one made by a single individual. As Hamilton observed in Federalist #73, “The oftener the measure is brought under examination, the greater the diversity in the situations of those who are to examine it, the less must be the danger of those errors which flow from want of deliberation.” More seriously, presidents who are above the law know they can never be held accountable for their actions.

As Lord Acton famously observed, “power corrupts and absolute power corrupts absolutely.”Unfortunately, far too many Republican voters are happy to centralize power in Trump’s hands, and this is not just a temptation affecting Republican voters. Fearing a midterm wipeout, Senators Ted Cruz and Tim Scott recently called on President Trump to cut taxes by $200 billion by executive order even though the Constitution places the power to levy taxes in Congress.

What Trump supporters cavalierly call “Trump derangement syndrome” is really widespread frustration that the President violates the rule of law so often and in so many ways without ever being held accountable—and millions of Trump supporters are not at all disturbed by this.

We need Republican voters to learn what the rule of law means and why it is so foundational to our democracy.

We need all voters, Republicans included, to demand that their representatives uphold the rule of law. This is why ORL makes the rule of law a core principle.