Law Day, the Cold War Eisenhower-era May 1 counterprogramming to the socialist May Day, is when American law school deans and judges give speeches on the importance of, as you’d guess, the law. But this year the law is threatened, not by the Soviet bloc, but by Ike’s own successor in the White House: Donald Trump.
During his first 100 days in office, Trump has been lawless, issuing 139 executive orders (and only signing five laws). He has attacked courts and judges and law firms that have gotten in his way. He has ignored judicial orders and called for the impeachment of federal judges and tried to make law firms bend to his will. Some firms have cravenly caved and others have bravely fought back.
The law does matter. It is what protects us from tyranny: Independent courts, separate from the executive. The right to be heard in court. The right of due process. The right to have a lawyer. It’s not just about TV shows like “Law & Order.” Yet rule of law in its most distilled form has to do with our agreement as a society to give up some of our individual control in favor of a certain predictability and the common good. Like every American, Donald Trump also needs the law, even if he believes he is above it.
What the law isn’t, or shouldn’t be, is the determination of one person or one party, in ways that cannot be predicted, cannot be challenged, and cannot be reconciled with the Constitution or our underlying principles of liberal and representative governance. This Law Day, we can take a moment to reflect not only on the particular sets of laws that matter to us, but the importance of a legal structure in of itself, one that does not fundamentally rely on one branch or one person, and which cannot be remade at will by any one leader.
Trump has gone to war with the federal judiciary to do away with constraints on his power. Congress, one house of which has been called the “greatest deliberative body on earth,” now seems content not only to eschew the responsibility to keep developing this nation’s laws, but to not zealously guard the potency of the ones already passed.
As Trump calls his executive orders “legislation” and tramples statutes — from attempting to dissolve government departments created by Congress to instituting disastrous tariffs under improper invocation of an emergency to fully ignoring our system of due process for immigrants — GOP policymakers seem thrilled to step aside and let it happen.
History is quite clear about one thing: the path back from authoritarian government is not an easy one. Lawmakers who think that, for reasons of political expediency or short-term electoral objective, they can humor Trump‘s power grab will come to find that you can’t quite put the toothpaste back in the tube. It’s always worth remembering that, in a system in which the rule of law has broken down, no one really knows if or when the state will turn against them, too.
A year from today will be another May 1 and another Law Day. We hope that the law will still stand tall then despite the Trump storm.
