Tag Archives: Rule of law

Make Congress Great Again

By Matthew Spalding – Today, the primary function of government is to regulate.

When Congress writes legislation, it uses very broad language that turns extensive power over to agencies, which are also given the authority of executing and often adjudicating violations of their regulations in particular cases. The result is that most of the actual decisions of lawmaking and public policy – decisions previously the constitutional responsibility of elected legislators – are delegated to bureaucrats whose “rules” have the full force and effect of laws passed by Congress.

The modern Congress is almost exclusively a supervisory body exercising limited oversight over administrative lawmakers.

If the development of the rule of law and constitutional government is the most significant accomplishment of the long history of human liberty, the greatest political revolution in the United States since the establishment of the Constitution has been the shift of power away from the lawmaking institutions of republican government to an oligarchy of experts who rule by regulation over virtually every aspect of our lives.

The result is an increasingly unbalanced structural relationship between what amounts to an executive–bureaucratic branch that can act with or without Congress to pursue common goals, and an ever-weakening legislative branch unable or unwilling to exercise its powers to check the executive or rein in a metastasizing bureaucracy. more> https://goo.gl/Jp3xRz

Donald Trump’s drive for “law and order” undermines the rule of law

By Dara Lind – The Trump administration does not value the rule of law. It values law and order. It values law enforcement as a weapon to be wielded in a particular direction: against social disorder, real and feared. It respects the “front lines” of conflict to protect order, but sees less need to preserve the independence of investigators or prosecutors to choose which violations of law to pursue.

In other words, it’s embracing the brute reality of power — while obliterating one of its most important constraints.

Both “rule of law” and “law and order” are tossed around as political slogans more often than not — and often by the same people. But in practice, they represent slightly different sets of values.

The “rule of law” is a procedural value: It says that the right thing for the government to do is to set, and adhere to, proper processes in all cases, without favor or prejudice to where those processes might lead.

“Law and order,” by contrast, is a substantive value: It says something about what sorts of results the government ought to be getting out of its activity (namely, a reduction in crime and social disorder, and the assurance of a safe and loyal populace). more> https://goo.gl/B0pnlP

Americans aren’t as attached to democracy as you might think

By Austin Sarat – While we have been focused on partisan divides over government policy and personnel, an almost invisible erosion of the foundations of our political system has been taking place. Public support for the rule of law and democracy can no longer be taken for granted.

While President Trump’s behavior has riveted the media and the public, our eyes should not only be focused on him but on this larger – and troubling – trend.

If the rule of law and democracy are to survive in America we will need to address the decline in the public’s understanding of, and support for both. While we celebrate the Ninth Circuit’s decision on Trump’s ban, we also must initiate a national conversation about democracy and the rule of law. Civics education, long derided, needs to be revived.

Schools, civic groups, and the media must to go back to fundamentals and explain what basic American political values entail and why they are desirable. Defenders of democracy and the rule of law must take their case to the American people and remind them of the Founders’ admonition that:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

more> https://goo.gl/q5VdsE

Iran Case Is So Secret It Can’t Go On

By Noah Feldman – Dismissing a lawsuit between private parties without giving a reason is the very opposite of the judicial function, which relies fundamentally on reason-giving. Where no reasons are given, we aren’t in the realm of legal decision-making. We’re in the universe of absolutism or autocracy.

What makes matters worse is the lingering possibility, indeed probability, that what the government fears is not a true threat to national security, but a severe case of embarrassment.

This is the first time a U.S. court has dismissed a lawsuit on the basis of state secrets when the case didn’t involve either the government or a defense contractor deeply enmeshed with classified government contracts.

It’s also a marvelous example of how secrecy fundamentally distorts the legal process and subverts the rule of law. more> http://tinyurl.com/ov2fekc

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