Let’s Talk Some More About America’s Supposed ‘Rule of Law’: The BorderLine

Simon Hankinson

6 months ago

There’s been a lot of talk about the “rule of law” in the wake of the recent verdict in Manhattan against former President Donald Trump.

President Joe Biden said that “the American principle that no one is above the law was reaffirmed.” Sen. Chris Murphy, D-Conn., tweeted: “The rule of law still matters.”

The rule of law protects us from the law of the jungle, where people take what they want and life is “solitary, poor, nasty, brutish, and short,” as English philosopher Thomas Hobbes put it.

History provides examples of what happens when political corruption undermines respect for the law.

In the fifth century, Priscus, a servant of one of the last Roman emperors, met a fellow Roman who lived at the court of Attila the Hun. (Yes, that guy.)

The Roman-citizen exile “explained that he could not tolerate the continual wards, corruption, merciless taxation, or the slowness, favoritism and injustice of the courts,” Phil Matyszak and Joanne Berry write in “A History of Ancient Rome in 100 Lives.”

When Priscus pointed out the “ancient institutions by which the Roman constitution protected men against such abuses,” the Roman exile “confessed that the laws and constitution … were fair, but deplored that the governors, not possessing the spirit of former generations, were ruining the state.”

With that in mind, let’s look at the “rule of law” over the past few years.

The rule of law wasn’t exemplified in the charges against Trump brought by Manhattan District Attorney Alvin Bragg, a Democrat whose ideology causes him to avoid prosecuting repeat and violent offenders after campaigning on finding a way to prosecute his nemesis, Trump.

It is obvious to anyone with a basic grasp of American jurisprudence that this two-step, jerry-rigged indictment was brought against Trump for political reasons.

Yale Law School professor Jed Rubenfeld calls using the law to go after political opponents “a dangerous precedent.” Or if you prefer comedian-podcaster Joe Rogan’s take: “They’re trying to stop this other guy [Trump] from even running, and they’re exposing how corrupt the democracy is.”

The verdict against Trump likely will be successfully appealed eventually, as my Heritage Foundation colleague John G. Malcolm writes.

But meanwhile, this article by constitutional lawyers Elizabeth Foley and David Rivkin sums up why Bragg’s case against the former president “will widen America’s political divide and fuel the suspicion that Mr. Trump’s prosecution wasn’t about enforcing the law but wounding a presidential candidate for the benefit of his opponent.”

Where is the rule of law in America’s major cities, where rogue prosecutors refuse to enforce laws against theft, and shoplifting has become epidemic?

As the French economist Frédéric Bastiat said (with thanks to Spectator columnist Cockburn), “men will resort to plunder whenever plunder is easier than work.” Without credible law enforcement, store owners and managers are forced to react in ways that barely deter thieves but punish the law-abiding majority—including woke elites.

Where was the rule of law when Biden decided to transfer the college loans of highly paid professionals and “studies” graduates to the backs of Americans who didn’t go to college or who worked and saved to pay for it? Not only is this half-trillion-dollar vote-buying spree unfair, the Supreme Court has ruled it unconstitutional.

Biden’s answer? “The Supreme Court blocked it, but that didn’t stop me.”

Finally, where is the rule of law in immigration? Biden has ignored the law that requires aliens to be detained if they enter the country illegally; his Department of Homeland Security lets most of them go.

The president has invented parole programs that violate both the letter and intent of the law. Perhaps worst of all, the ideologues he put in charge of immigration enforcement have decided not to bother.

In announcing Biden’s new, useless executive order on the border, the White House tried to blame the “outdated and broken immigration and asylum system” for the Biden administration’s inability to “quickly impose consequences on all noncitizens who cross irregularly and without a legal basis to remain in the United States.”

But it wasn’t an “outdated system” that allowed a judge to toss out the deportation case against Bernardo Castro Mata, an illegal alien from Venezuela who recently shot two New York City police officers after they tried to pull him over for driving a scooter the wrong way at 1:40 a.m.

Mata entered the U.S. illegally in July 2023 and now lives in a former Marriott hotel, courtesy of New York taxpayers. Not only did this supposed asylum-seeker manage to get hold of an illegal weapon, but he also is a suspect in several robberies in Queens.

What allowed him to get off scot-free for breaking into our country, fleeing whatever criminal record he left back home, was DHS’ staggering abuse of what is called prosecutorial discretion.

In an April 2022 memo, Kerry Doyle, the top lawyer for U.S. Immigration and Customs Enforcement, part of DHS, lays out the policy (and ICE’s frequently-asked-questions page reveals its insanity).

“The use of PD [prosecutorial discretion] in the immigration context helps advance good government,” Doyle’s memo says, because it allows ICE attorneys “to remove a case from the immigration court docket through dismissal or administrative closure.”

So, the lawyers at Immigration and Customs Enforcement who are charged with enforcing immigration laws passed by Congress think they simply can decide not to do so.

That’s not the rule of law but its opposite: arbitrary and capricious prosecution, or not, based on political considerations.

Incredibly, ICE actually wrote that the preferred form of prosecutorial discretion for ICE’s Office of the Principal Legal Advisor will continue to be not filing a Notice to Appear for an illegal alien “or, if removal proceedings have commenced, dismissal of removal proceedings.”

So, as well as throwing out cases altogether, as the lawyers did for Mata, ICE can just fail to give a released illegal alien a Notice to Appear, the charging document that requires an alien to appear in court, concede or refute the charged ground(s) of removability, and apply for any relief from removal.

No charge, no case. That’s amnesty, not via the rule of law, but by presidential whim.

ICE’s prosecutorial discretion is a travesty of legal process: Congress passed immigration laws that require consequences for those who enter the U.S. illegally. Yet, the executive branch of government decides to do otherwise and drop cases, turning discretion by exception into the rule.

So much for the executive branch’s sworn oath to uphold the Constitution. The New York Post recently reported that ICE has dropped an incredible 350,000 cases since 2022. Now that Biden administration officials have decided the law doesn’t need to be followed, there’s nothing to stop them going for broke.

Why hand out a single Notice to Appear? Why prosecute any case, even those of violent and repeat offenders?

As The Wall Street Journal’s Gerard Baker warns: “Democrats should understand that … the whirlwind they will reap by reducing the law to the status of a weapon in the hands of the dominant political power is fatal for them too—and for the American system of government.”

The rule of law is the basis of our free and exceptional American society. If it gives way to the law used capriciously, as a political tool—so-called lawfare—then both sides will use it, to the country’s detriment.

The BorderLine is a weekly Daily Signal feature examining everything from the unprecedented illegal immigration crisis at the border to immigration’s impact on cities and states throughout the land. We will also shed light on other critical border-related issues like human trafficking, drug smuggling, terrorism, and more.