I don’t even know where to begin this one.
As I lay in a hammock in my backyard listening to my kid play, my mind is both exhausted and restless. It’s been like this since January; by the time I make it to the evening, I have not a lot left to give, but at the same time my daily productivity has fallen off a cliff. There’s too much going on, too much bad news, too much provocation, and too much bad faith stupidity. Lately, I’ve wondered if this is just what it feels like to get older, where the cynicism starts to flow freely and your beliefs and hopes for the future are diminished by repeated interactions with reality. This makes me wonder if this is partially what Irving Kristol meant when he wrote that a neoconservative is just a liberal who has been mugged by reality.
On the other hand, then I remember that the village idiots are running the show, there are significant human rights violations going on in my industry, and my belief in the power of law has been obliterated by the current administration. The political system can’t save us, because this reality is what people think they want. The Congress won’t save us because it’s been captured by interests that don’t have anyone’s best interests in mind, except those wealthy enough to play the federal politics game. The courts won’t save us because they’re ultimately toothless, slow to react, and overly cautious about being too biased.
It’s worse than this though; law itself can’t save us because it’s ultimately just a tool for the powerful to restrain the less powerful. No one holds power to account without power. It wouldn’t be as terrifying if there were instances where law still looked like a logical system of rules rather than federalist society calvinball. Unfortunately, the immigration world is a picture of things to come, and as the government gets more brave and less restrained by law, the more it will remake other areas of society over in the image of immigration law.
I feel daily like I’m witnessing what the founding fathers were trying to stop when they were afraid of a strong central government. Trump’s arbitrary and capricious policy changes are buttressed by plenary powers doctrine, the idea that the government can do whatever it wants in the realm of immigration, and defended by a warped version of the separation of powers doctrine, which argues that the courts are intruding on the realm of the executive branch.
It’s exhausting. And it’s all bullshit.
The executive is poorly defined; this has allowed various presidents to run with whatever authority they can snatch from society. This lack of articulated attributes and authorities makes sense when you consider that the executive was just supposed to give George Washington a seat as the figurehead. The reality is the president wasn’t meant to do much. Sure, he’s a bit of a king in his kingdom, but the boundaries of his kingdom are drawn by Congress, with an outer boundary set by the constitution and the judiciary. At least, that’s how it is supposed to work.
Congress has been free to delegate its authority to set those boundaries to the President since the new deal. This has increased the executive’s power. We can debate the merits of Congress’s ability to delegate its authority, but this has been legal precedent for quite some time.
Paradoxically, the judiciary is stripping down the administrative state by…empowering the executive further. That’s the result the last few SCOTUS decisions will likely have. Again, we can debate the merits of this, but who is going to enforce the constitution when the enforcement arm of the government is the one abusing its power?
I imagine some conservative thinkers would just respond that the country is reaping what it has sewn with how things have progressed since the new deal. However, I practice in plenary authority land; very little constrains the president’s authority, and no court has ever seriously challenged the broad strokes of this authority. In that way, I’m feeling a little bit like the “ghost of Christmas yet to come.”
Things are going to get ugly if the judiciary keeps bowing to the executive to respect the doctrine of separation of powers. This is even more true while the judiciary has little stomach for keeping the executive from crossing too far into the realm of the legislative branch. That’s a recipe a government that is no longer restrained by law, but is still able to use the law to hold others in check. How do I know this? Because that’s been the state of the immigration law world for quite a long time.
Law was originally the tool of the powerful to restrict those without power, and eventually that dynamic was challenged until the powerful themselves were restricted by it. I feel the rest of the power of the federal government to keep itself in check, slinking away. And this is especially disturbing because the federal government is what keeps the states in check.
This isn’t really what scares me, though.
What scares me is that the events of the last few months have convinced me that law has no inherent power. I suppose I always knew this, but it’s one thing to know it intellectually and another to see it in practice. Ultimately, the law only works when people make a good faith attempt to follow it, collectively. However, when people feel free to ignore law as a logical system it, it really becomes apparent that at any given time we’re just a few crazy people away from political violence.
Donald Trump doesn’t care about the law; this isn’t news to anyone at this point. What he does care about is that other people follow it. However, this perspective is self-defeating. Why should anyone follow the law if he won’t? What happens when the civilized law breaks down like this? We revert to the rules of power as they exist in the world, a world where power is the law. A world of killers, and those they kill, as Donald might say.
This is the real flaw of the America First movement. A world of no compromises is a world where China First kicks America First to the curb. It’s a world where Germany first very nearly wiped out western civilization. The use of law to reinforce power, as Trump loves to do, is a world where people use power to take control of the law.
Maybe it always was this way, even if it didn’t feel like it.
I accept that the law is at best a gentleman’s agreement to cooperate with each other. But if the world really is just a place where you kill or be killed, I don’t really want any part of it. What’s frustrating is that I have no desire for power, but I am faced daily with people who need power on their side to right wrongs and defeat injustice.
So I’m lying here, feeling empty and disappointed with the world. Maybe my parents made me watch a little too much Fred Rogers. Maybe I took the teaching of Christianity a little too literally. Maybe I believed in the propaganda of American values without being jaded enough to to expect society to fall very short of them.
All of that may be true. But it seems my real failing was believing we could build a logical system of rules and norms to keep us all from killing each other.
I’m desperately hoping that in the near future, I’ll be wrong, and this period of history will become nothing more than a reminder of how easy it is for us to lose our society. But tonight, I don’t have a lot of hope that we’ll actually make it through this. At least the chaos of reality will keep it interesting 🤢.