Law in Contemporary Society

Law is in the Eye of the Beholder

-- By MaxOffsay - 31 March 2017

“We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind.” - Oliver Wendell Holmes, “Path of the Law”

It is difficult to recall a time where American politics were not so polarized that Congress could be relied upon to compromise and put the interests of the country before the interests of the party. And yet, the past six months have made the truth of Holmes’ statement more clear than ever before in my lifetime. Congressional obstructionism made it very difficult for President Obama to enact many critical pieces of his agenda, leading to significant attention being paid to the unilateral executive actions that he took. In January 2016, Donald Trump said, “We have a president that can’t get anything done, so he just keeps signing executive orders all over the place.” (1) While technically Obama used executive orders less than any other president over the previous 100 years (2), the criticisms of his tactics were not wholly unjustified, as executive actions can be accomplished by presidential memoranda, “determinations” and many other less “formal” avenues of exerting executive power. Leading Republicans claimed that Obama’s use of executive power was an unconstitutional way to bypass Congressional authority while many Democrats saw it as the only means for Obama to enact aspects of his agenda. Obama’s supporters viewed the use of his executive powers as pragmatic steps to achieve necessary goals that were being thwarted for political reasons, including the implementation of the ACA, heightening environmental standards and deferring deportations. (3)

In his first 100 days as President, Donald Trump signed 32 executive orders, more than any other president in their first 100 days since WWII. (4) Now it is Donald Trump and the Republicans who are extolling the virtues of swift and decisive executive action. While the Democrats sit back and watch, Trump advances his agenda and rolls back many of Obama’s executive orders. (5)

This drastic reversal of positions is evidence of the truth of Holmes’ “Path of the Law”, in which he argues that the law cannot be deduced through logic, such that one can arrive at it simply by “doing their sums right.” Instead, he argues that law derives from legislative and political policy judgments which are not self evident and are only later given a “logical form”. The current deluge of executive orders exemplifies this message. Not only the substance of the law is changing due to the change in administration, but individuals in government are changing their views on the power of the executive as well.

For example, in January of 2014, Senator Ted Cruz published an article in the Wall Street Journal entitled “The Imperial Presidency of Barack Obama”, in which he describes Obama’s use of executive power as “willingness to disregard the written law and instead enforce his own policies via executive fiat.” (6) His statement “That no one—and especially not the president—is above the law” paints a picture of the law as something absolute, which Obama’s executive actions were plainly violating. Contrast that with the overwhelming support that Cruz has given to Trump’s travel ban and a contradiction emerges. Instead of maintaining his zealous criticism regarding the illegality of strong executive action, Cruz has made no comments regarding Trump’s record number of executive orders and has publicly defended the travel ban, saying that the Supreme Court will uphold it as “the president has this authority.” (7) While it is possible that Cruz thinks that all of Obama’s actions were legally impermissible but has no objection to any of Trump’s orders, a more plausible view is that rather than taking issue with the abstract notion of executive action, Cruz disagreed with the specific policies underlying Obama’s actions but is in agreement with the goals Trump is trying to achieve.

Many may expect this type of partisanship from the political branches but would expect (or at least hope) the judiciary, the branch responsible for “say[ing] what the law is”(8), to have a politically neutral, logically grounded view of the law. But Holmes’ point applies equally to the judiciary as well and is exemplified by the recent Fourth Circuit ruling. In a 10-3 decision the court upheld the stay on the travel ban. It is of interest here that all of the judges in the majority were nominated by Democratic presidents and all of the dissenting justices by Republican presidents. (9) One could argue that perhaps one of the sides was simply “doing their sums wrong” and applying the incorrect logic. But this outcome suggests that a more likely answer is that the law is not something that can be logically derived, but rather it is a function of a certain political agenda. Therefore, the judiciary may only be a useful check on Trump’s agenda for so long as it is presently comprised. If the law really is what the president and courts say that it is, then all it would take for a change would be a few judicial appointments.

The parties have done a complete role reversal on the topic of executive power over the last six months but neither side would be likely to admit that the law has changed. Both parties will try to differentiate their use of executive power and claim that their view of the law remains the same. Neither party will admit that in reality, their views have changed as a result of the change in the party in power and the policies that they are trying to put forth. Holmes was right to say “our law is open to reconsideration upon a slight change in the habit of the public mind” as a change in the public mind leads to a change in presidential power, and in an era of a paralyzed legislature, the keys to the oval office can therefore mean a great deal in determining what the law is.


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8 : Marbury v. Madison, 5 U.S. 137, 177 (1803)

9 : 434b6d506b37_story.html?utm_term=.95f3c3c43b91


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r3 - 01 Jun 2017 - 06:23:46 - MaxOffsay
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