Whose Rule of Law?

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

So alarming was the headline in this morning’s New York Times — “Trump Could Threaten U.S. Rule of Law, Scholars Say” — that we were tempted to rush out and, against the possibility of a breakdown in public order, purchase a gun. But, dang, it turns out that notwithstanding the Supreme Law of the Land, which says the right of the people to keep and bear arms shall not be infringed, it’s illegal to carry a gun at New York. To what candidate will the scholars lay that threat to the rule of law?

The truth is that this business about threatening the rule of law cuts two ways. We don’t fault the reporter, Adam Liptak, of whom the Sun is an abiding fan. Mr. Trump, moreover, has courted this kind of coverage. He’s done this with his vows to, say, as Mr. Liptak paraphases him, loosen the libel laws and to sic federal regulators on his critics. We don’t mind saying that Mr. Trump’s contempt of the judge hearing the Trump University class action suit is as appalling to the Sun as to everyone else.

However appalling Mr. Trump’s bluster may be, it is no more threatening to the rule of law than when we’ve been hearing from President Obama these past eight years. He doesn’t want to submit the biggest international agreement of his presidency — the Iran appeasement — to the Senate for ratification as a treaty. That’s because it’s opposed by majorities in both houses of Congress. So he inks it anyhow and gets it ratified in the Security Council, against the wishes of his own legislature.

The First Amendment? Has Mr. Trump done anything as contemptuos as Mr. Obama’s 2010 State of the Union address, in which he attacked the justices of the Supreme Court to their faces as the Democrats in Congress issued catcalls and boos? Said the Chief Justice later; “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling.”

What set Mr. Obama off was, remember, a radical expansion of the First Amendment protections in the case of Citizens United. And what was that about? It was about the efforts of the government to outlaw a private charity from marketing a film critical of, in Hillary Clinton, a candidate for president of America. Bill Maher calls Mr. Obama “perhaps the worst president we’ve had on clamping down on the press.” From which quarter is the threat to the First Amendment — Donald Trump or the Democratic Party?

Rule of law? How about, say, Noel Canning? That is a case in which President Obama tried to pack the National Labor Relations Board through the use of recess appointments. The Supreme Court slapped him down nine to zero, as in unanimously. Justice Breyer wrote the opinion. That’s only one of 20 cases that the Obama administration in its first five and a half years lost in the Supreme Court by a lineup of the nine that was unanimous, according to a study done by Senator Ted Cruz, a constitutional sage acknowledged even by his adversaries.

Mr. Obama’s unanimous losses in the Supreme Court, Mr. Cruz reckons, have been running sharply higher than his predecessors’. For the first five and a half years of his presidency, Mr. Cruz wrote in the National Review in 2014, that count of 20 was nearly double that of George W. Bush and 25% higher than President Clinton. No doubt it would be folly to make too much of such statistics. But it would be shortsighted to ignore them, too. Who gets to lecture whom on rule of law?

Now, we understand that it’s in the nature of all presidents to be the actor rather than the judge. Some of our greatest presidents were miserable in the legislature, if they were prepared to sit in one at all. And there is nothing wrong with a president pressing the envelope far enough to be brought to the Supreme Court and to lose there. But when our legal scholars start fretting about how Donald Trump is more of a threat to the rule of law than anyone else, they start to lose their credibility — at least with us.

Particularly when none of the Democrats have spoken up about the mob violence that their voters are unleashing at Donald Trump rallies. The Republicans are not doing that to Hillary Clinton and Bernie Sanders (though Senator Sanders’ supporters have done a bit of it at Hillary Clinton rallies). What happened in San Jose today is astounding — the mayor of the city blaming Mr. Trump for coming to the city in the first place and suggesting he was responsible for the violence against his supporters. A bald threat to the rule of law — from the Democrats.


The New York Sun

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