Oversight, Executive Orders, and the Rule of Law

by David Driesen

March 14, 2019

This post is based on a recent article published in the University of Missouri—Kansas City Law Review.

Congressional oversight and the public's impeachment discussion tend to focus on deep dark secrets: Did President Trump conspire with the Russians? Did he cheat on his taxes? Did he commit other crimes before becoming president? The House Committee on Oversight and Reform (or the Judiciary Committee), however, should also focus on a more fundamental and less hidden problem: Trump has systematically sought to undermine the rule of law in the United States. He has done the opposite of what his oath of office requires by taking care that the law be faithlessly executed. I am not just talking about some illegal actions, but rather about a systematic effort to direct government employees to do the opposite of what the Constitution requires. For this reason, there is a need for centralized, not subject-matter specific, oversight.

Trump has openly employed a three-part strategy to destroy the rule of law. He issued a series of executive orders establishing policies that attack the Constitution and much of the U.S. Code. He put people opposed to faithful execution of the law into key posts, such as Scott Pruitt at the Environmental Protection Agency and Betsy DeVos at the Department of Education. And he sought to oust career civil servants (as the autocrats he so admires have done) by firing or demoting many, leaving key positions vacant, shutting down the government, and creating a toxic atmosphere for truth and law.

Trump's executive orders create a framework producing continuous and ongoing law violation facilitated by appointees who believe that the president's personal preferences should supplant the Constitution. Having a president's personal policies supplant law constitutes the very essence of autocracy.           

A few of the president's executive orders injured people so quickly that the courts promptly prevented their implementation. Examples include the Sanctuary Cities Order (attacking states' rights and the congressional power of the purse) and the first two Muslim travel bans (attacking neutrality toward religion, due process, and equal protection).           

But the broadest executive orders undermining the rule of law operate indirectly enough that the courts have found it difficult to intervene. For example, Trump instructed the civil servants who work for the U.S. government to gut the Affordable Care Act to the extent that they could get away with it through an executive order. Through the so-called 2:1 order, he directed government agencies to undermine vast swaths of the United States Code, which aim to protect public health, the environment, and the economy from financial chicanery, pollution, unsafe food and drugs, and other afflictions. He ordered the government not to protect most of its citizens by generally forbidding agencies to impose net costs on businesses.           

Some of the information necessary to show how the attack on the rule of law has proceeded is readily available, but hearings must make its import for our Constitution clear to the American people. Congress must help the public understand the rule of law and why it matters to our democracy. Thus, for example, the Trump administration's own statistics claim that its deregulatory actions outnumber regulatory actions by 12 to 1 (in FY 2018). This shows a violation of the rule of law because the statutes have the goal of putting standards in place to protect people from various harms, not to protect businesses from the cost of safely conducting their operations. If Trump wants to ask Congress to repeal statutes, that is constitutionally legitimate. But when he orders his agencies not to implement them properly, he violates his oath of office. Under our Constitution, laws, not presidential preferences, govern.           

The wall debacle showed how effective a shift from only defending Democrats' policy priorities to defending the rule of law can be. When the Democrats shifted their emphasis from immigration policy to insisting on respect for the congressional power of the purse, even some Republicans joined them.           

While a shift toward rule of law defense is key, the oversight committees also need to assemble some new information. ICE has denied immigrants a chance to exercise their statutory rights to apply for asylum in recent years and started separating parents from children. Where did the signal to do that come from and why did ICE agents obey it? 

We have statistics on how many civil servants have retired. But I am not aware of statistics showing how many younger people have quit because of the Trump effort to dismantle rational and law-abiding government. Democrats should show they care about people and competent government by compiling those statistics and listening to former civil servants' stories about intolerable conditions for honest government service.           

Finally, Congress needs to understand that the Framers provided for the impeachment of officeholders precisely to prevent unfit people from holding high office. They did not understand the phrase "high crimes and misdemeanors" to refer only to criminal offenses. If Congress feels obliged to wait for secrets to emerge about Trump before considering his impeachment, it still can impeach other officeholders. Surely, separating parents from children and failure to provide opportunities to apply for asylum justifies an impeachment investigation of Kirstjen Nielsen.

Congress is right to look into Trump's crimes. But the Constitution needs defense more broadly, by exposing and acting on Trump's effort to destroy the rule of law. Once hearings on this point begin, it will put immense pressure on all lawmakers to get on board to defend our democracy.

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