Is legality political?

• Author: Schauer, Frederick

INTRODUCTION

Following the law just because it is the law seems surprisingly unpopular in the United States these days. Or maybe it is not just "these days." And perhaps this should not be surprising. For some time now, political figures, public officials, and legions of commentators have treated the law--formal sanctions aside--as something to be followed when it produces results perceived as desirable on first-order policy or political grounds, but as something to be disregarded or slighted when what the law demands differs from the course of action that might otherwise have been pursued for law-independent reasons. Quite often, it appears, officials and citizens alike condemn the unlawful character of policies they oppose on substantive grounds, but ignore any illegalities in the policies they favor.

Examples of this phenomenon are ubiquitous. The Bush administration seemingly treated the law as an annoying yet ultimately surmountable obstacle when the Foreign Intelligence Surveillance Act (1) interfered with what the administration believed was the valuable or even necessary warrantless domestic surveillance of American citizens, (2) but much the same attitude toward the law was embodied in the decisions by the mayors of New Paltz, New York, and San Francisco, California, to marry same-sex couples in violation of the prevailing law in those states. (3) President Bush's decision to invade Iraq was inconsistent with international law, (4) but little more or less so than President Clinton's decision to authorize military action in Kosovo. (5) And numerous other instances of what we might call "selective legality" pervade public and political life. (6) Indeed, the debate over the appropriateness of referring to people who have entered the United States in violation of existing law as "illegal immigrants," rather than as "undocumented workers," provides a nice example of the widespread tendency for people to stress any illegality in the policies they disfavor while striving to downplay it with respect to the policies they support. (7)

As the examples in the previous paragraph were designed to demonstrate, avoidance of the law in the service of what are perceived to be sound political, policy, or moral goals appears at first glance to have little political valence. Of course, these substantive--or first-order--political, policy, and moral goals assuredly do vary with time, place, political party, and presidential administration, but the willingness or unwillingness to subjugate the law to those law-independent goals seems at times to be politically, temporally, and geographically indiscriminate. (8)

It is thus a large and important question whether legality as such--the fact of law just because it is the law, and not because of the substantive content of the law--has any political incidence. Is respect for the law because it is the law more the province of some political orientations or parties than of others? In this Article, I propose to examine this question, albeit more anecdotally than systematically. But the anecdotes and the available data span a wide variety of further questions: Do Congress or the executive branch consider themselves bound by Supreme Court or lower court judicial opinions with which they disagree? Do legislative bodies follow the rules they have set forth for their own procedures? Do federal, state, and local officials follow the law when they need not worry about first-order public opinion or formal legal sanctions? Much of popular "rule of law" rhetoric appears to assume that the law both is and should be a significant constraint on the behavior of nonjudicial public officials and policy-relevant public figures. (9) But a closer look at the evidence may suggest--albeit tentatively--that the willingness to disregard inconvenient law is a common phenomenon, and that it exists across the political spectrum. To the extent that this is so, it may indicate that acquiescence to the law more broadly is similarly politically indiscriminate, such that for all of the substantive changes that political or electoral transformations may produce, changes in the attitude about the law qua law is rarely among them, and has not been among them in the most recent American political transformations.

I

In order to situate the inquiry, a fair amount of brush clearing will be necessary. And the first swath of brush to be cleared is the question of just what it is to obey or follow the law. What do we mean when we say that a policymaker obeys the law, or that a policy follows or complies with the law? Initially, it is important to distinguish compliance from conformity, or consistency. That is, the question whether an official follows or obeys a law because it is a law is different from the question whether official action happens to be consistent, for reasons other than the existence of the law, with what the law demands. (10) The same applies to following or obeying a court decision. It is one thing for a lower court or public official or political body to make a decision that is merely consistent or in conformity with what the Supreme Court has decided. Consider California Proposition 209, (11) for example, a state political decision that happened to prohibit the same types of preferential use of race in public employment, public education, or public contracting that the then-prevailing and most applicable Supreme Court decision, Regents of the University of California v. Bakke, (12) also prohibited. (13) Proposition 209 was thus coincidentally consistent with the governing Supreme Court decision, but that is in contrast to a decision made by a public body just because of a court decision, as when the University of Michigan altered the way in which it took race into account in undergraduate admissions solely because of the Supreme Court's decision in Gratz v. Bollinger. (14) Only in the latter case can we say that the state has obeyed the Supreme Court, or complied with it, because only in the latter case did the state act the way it did just because of what the Supreme Court had decided.

Thus, it is important to exclude from the category of obedience those actions that are consistent or in conformity with the law but which are not taken because of the law. (15) do not, for example, kill or otherwise physically attack those of my colleagues who speak at interminable length at faculty meetings, however tempting it might be, but that is not because murdering or assaulting my colleagues happens to be against the law. Rather, I refrain from such actions because I believe them to be morally wrong and personally risky, and those reasons would be sufficient to determine my nonmurder and nonassault even absent the law. Similarly, my unwillingness to eat human flesh is not a function of the laws against cannibalism. It is simply that I find the prospect of such behavior repulsive--or perhaps it is better to say "distasteful." Were the laws against cannibalism to be repealed, (16) my culinary habits would not change one whit. And thus with respect to these and countless other examples, the law, designed primarily in such instances to control the behavior of outliers to otherwise accepted social norms, (17) is entirely consistent with my first-order moral and personal preferences. The fact that the law happens to be aligned with those preferences makes no difference at all to my behavior. But if, on the other hand, we are interested in what the law does, and in how officials perceive the law and act with respect to it, then we should be interested, at least in part, in the extent to which the law actually influences official behavior. For that purpose, the existence of coincidentally conforming or compatible official behavior turns out to be largely beside the point.

Thus, to revert to an earlier example, even if we believe that a Clinton or an Obama administration would not have invaded Iraq in 2003, and assuming all other events--including September 11, 2001--remained the same, we still should want to know the reasons for the presumed difference. More particularly, we should ask whether a different President or administrative course of action would have been based on some aspect of domestic or international law, or instead simply have been based on the moral, political, and foreign policy differences between the Clinton and Obama administrations and those of the Bush administration. Similarly, even if we assume that neither President George H.W. Bush nor President Clinton would have authorized illegal (18) aid to the Nicaraguan Contras in 1986, we should want to know whether that position would have been, for them, based on moral, political, and foreign policy considerations on the one hand, or on legal considerations on the other. If the moral, political, and foreign policy views of those administrations would have been sufficient to produce a refusal to provide military aid to the Contras, and thus a policy different for nonlegal reasons from the policies undertaken during the Reagan administration, then once again it may be that the law's constraints were for the most part causally inconsequential.

It is thus of considerable interest whether the existence of law, as law, and just because it is law, provides content-independent reasons, sanctions aside, for public officials to take the actions that the law demands. (19) Still, the reasons that may at times be provided by law qua law are not necessarily conclusive reasons. So although it is a mistake to conflate legal conformity with legal compliance, so too is it a mistake to assume that legal nonconformity is necessarily a product of the law being viewed as irrelevant. The law can provide a reason for making a decision consistent with the law even if and when that reason is outweighed or overridden by other reasons inclining a decision in the opposite direction. (20) That the Supreme Court in Grutter v. Bollinger held some forms and some degree...