From UN Resolution to immigration reform, rule of law cited as reason or excuse
“Democracy is not the law of the majority but the protection of the minority.” — Albert Camus
Government policy having been mired in partisan obstructionism for more than a decade, there is no shortage of issues around which to make a rule of law argument. Nowhere among domestic issues is the rule of law debate more pronounced than in regard to immigration reform, while it is being challenged as well on the foreign policy front, as in the quest for rapprochement between Israel and the Arab world with arguments and recriminations remaining from the previous administration.
It is inevitable that during the course of the bitterest arguments over policy and law, “rule of law” will be invoked in support of one – and very possibly both – of the positions in dispute. Emphasizing this principle’s profound importance to civil society is the virtual certainty with which “rule of law” will be a featured element among the arguments proffered by both proponents and opponents of whatever notion is under attack. It seems the ‘other side’ never adequately respects the need for rule of law.
So for the new Trump administration, targeted by its foes at every turn from its infancy, it’s not surprising that attacks on the incumbent’s agenda frequently begin with the allegation that rule of law is its first victim. But where the argument breaks down is when the party making the charge fails to recognize that rule of law is not simply a patriotic epithet or a noble phrase with wiggle room for details to follow. Rather, the rule of law refers to real – actual and existing – laws, rules and legal regulations. Laws that are codified, published and available not only for all to see, but to be applied fairly and enforced in equal measures. Put succinctly by immigration attorney Neil Weinrib, “Rule of law is a time-honored doctrine requiring the government to exercise its use of power in accordance with firmly established rules, regulations, and legal principles [that require] the government to exercise its power in accordance with law.”
Yet, despite the prolific nature of rule of law debates, it’s not at all uncommon to hear a network commentator or self-described pundit lose sight of the reality that the same party that is choosing one side today chose the opposite one the last time an incumbent he/she favored was in office: much the way football teams switch end zones at half-time.
When former US Secretary of State John Kerry stepped to the microphones at the State Department’s Acheson Auditorium on last year’s final Wednesday to defend the unpopular decision by the Obama administration to withhold its veto of a UN Security Council resolution highly critical of Israel, he presented what some maintain amounted to a rule of law argument. Articulating an “if—then” affirmative obligation, he said action against Israel was necessary because “if we were to stand idly by and know that in doing so we are allowing a dangerous dynamic to take hold which promises greater conflict and instability to a region in which we have vital interests, we would be derelict in our own responsibilities.”
Critics of Kerry, however, are quick to assert that the former secretary’s “dangerous dynamic promising greater instability test” would have similarly triggered the promised retaliatory US action against regime forces in Syria – whose use of chemical weapons clearly satisfied the Kerry formula — rather than backing down from the Obama red-line.
According to international relations expert Gol Kalev, who chairs the America-Israel Friendship League think tank, the issue of the UN Resolution “was a political, not legal matter.” Kalev told The Media Line that, “international law is often used as a tool to achieve political objectives,” as it was in this cogent example. Indeed, the former secretary could have justified withholding the veto along policy lines by saying, “We decided it serves our interest.”
University of Maryland Professor Paul L. Scham apparently agrees. Referring to Kerry’s justification, Scham told The Media Line that the administration’s position was “a political judgment call, not a legal obligation, and I don’t think anyone said the US was ‘obliged’ to abstain.” Asked whether a nation has an affirmative obligation to instill the rule of law in a country that is devolving into chaos, Scham explained that, “There is an evolving doctrine of ‘responsibility to protect,’ that the UN can invoke, but generally international law is focused on preventing one nation from intervening without the consent of the government.”
A few weeks before the Kerry speech, a conference held in Jerusalem focused on rule of law and its impact — including in the Middle East. Asked about the UN Security Council resolution, one of its organizers, a rule of law expert, the Heritage Foundation’s Becky Norton Dunlop, told The Media Line that, “The United Nations is not a sovereign nation and does not have the moral or legal authority to establish laws or rulings that govern citizens of sovereign nations.” Accordingly, former US Secretary of State John Kerry’s defense of the withholding of the American veto of the resolution missed the mark, rule of law-wise. Moral, ethical or political, perhaps. But not rule of law.
No issue presently before the public attracts more rule of law references than does immigration reform. But unlike the issue of the UN Security Council Resolution, immigration law – established or new – is, indeed the recognized rule of the sovereign US government. The contentious issue being fought in the halls of government is the other element of rule of law – separation of powers – as the executive orders of presidents square off against the rules and regulations promulgated by the Congress.
It is interesting to note the remarkable similarity of criticisms leveled at an incumbent and defended by the incumbent’s administration to the very same criticisms leveled at the successor incumbent and defended by his/her team. In the present debate, allegations of over-reaching of executive power and the assault upon the separation of powers stands out.
Perhaps the argument would be less confusing if American immigration law was not so riddled with contradictions. Weinrib notes “the Chinese Exclusion Act [and] the failure to admit Jewish refugees from Europe during the Holocaust,” as exceptions clearly in-line with the arguments over preventing refugees from certain Muslim-majority nations to enter the country.
The Refugee Act (1980), according to Weinrib, “was created to provide a permanent and systematic procedure for the admission to the United States of refugees on a case by case basis.” Hence, with the “firmly established rules, regulations and legal principles” aspect of rule of law in place, it appears to be more the issue of reconciling law and policy than an argument suggesting the break-down of rule of law because of an unpopular policy.
It remains unlikely that invoking rule of law in the context of political and policy debate will diminish any time soon. As the nation’s executive transitions from old to new, it’s worth remembering that critics of the now former president frequently argued against his penchant for issuing executive orders that opponents charged were transparent efforts to usurp powers rightfully resting with Congress. An argument filling today’s headlines, albeit with a new name and different party.
FELICE FRIEDSON is President and CEO of The Media Line, the American news agency specializing in the Middle East. She can be reached at felice@themedialine.org.