A note in support of law on St Valentine’s Day

From time to time in the past my written musings have extended to the relationship between government, the courts and lawyers. In the United Kingdom it’s all become rather less tense since the change of government. We do not, at the moment at least, have ministers condemning judges as obstructors with their own agendas or characterising lawyers who represent people in the courts as politically driven exploiters of loopholes.

By contrast, on the other side of the Atlantic the new Trump administration appears determined to push those relationships to their limits. In general, the default constitutional position of the United States has for generations been based on absolute power residing nowhere. Instead, power is distributed between Congress, which in turn has two elected houses, the President and the Supreme Court. That allocation of power has been the means by which each institution has regarded itself as subject to checks and balances inherent in the role of each of the others.

The default position is now under challenge. During the time of the Biden administration, in the context of an attempted indictment of Donald Trump for alleged election interference in the result of the 2020 Presidential election, the Supreme Court made a ruling that a President is immune as a matter of law from prosecution in relation to official actions carried out as President. There was some discussion about what would be regarded as official as opposed to unofficial actions but no clear picture of where limits, if any, to Presidential immunity would kick in was established.

We are now seeing a President with a transactional view of the world testing the balance of power within the system of federal government, proposing a solution for Gaza which pays no heed to international law, attacking the legitimacy of the International Criminal Court and appearing to regard the resolution of the Ukraine war as just another business deal in which USA Inc is involved. In a flurry of applications of his marker pen to executive orders, he has dismantled structures and blocked spending which are within the province of Congress rather than the White House and pardoned the 6^th January insurrectionists. He has given wide scope to a non-elected businessman with no experience of government to slash and burn federal agencies, departments and expenditure. Courts in the United States have already ruled against him on questions surrounding the lawfulness of a number of those executive orders. It is unknown at this point whether he will take much notice of those rulings, but a number of commentators are suggesting that, emboldened by Presidential immunity, he may not.

None of us is, of course, party to Donald Trump’s innermost thoughts. Nevertheless, it doesn’t seem fanciful that we are watching a man who knows that he is in his second and final term of office and who is impatient to build a legacy. With that in the background, there is a clear temptation to weigh the advantages and disadvantages of compliance from a transactional perspective with Presidential immunity being a possible factor in that process. At its worst, the door to despotism in the Oval Office appears to be unlocked if not yet ajar.

Should it matter, or is disquiet at what’s happened so far mere handwringing by those who would assert that the importance of how things are done is more important than the idea that the breadth of the democratic mandate given in the 2024 Presidential election leads to the ends justifying the means?

Ultimately, in political terms it will be for the electorate in the United States to decide on the manner of the Trump administration’s handling of that mandate and to deliver its judgement through the ballot box. But in the meantime, for many lawyers, alarm bells are ringing. Why? Because lawyers exist because of and operate against a background of understanding that there is a consensus within a democratic society that it is to everyone’s benefit that there are rules and that there is a process by which those rules are made. All that would be useless if, when those rules need enforcing, courts are not competent to do so. When a leader of a nation uses power by reference to a claimed democratic mandate but in denial of those democratic institutions or courts whose procedures or rulings are inconvenient, it becomes difficult to maintain why anyone should submit to the rule of law. Populists in other countries will take note and learn from what’s happening in the United States.

Those defending the Trump administration’s actions will no doubt argue that the legal system has already been undermined by weaponising it for political purposes, that necessary change is obstructed by the problems caused by the glacial pace at which legal systems can work and expound the virtues of constructive chaos in achieving substantial change. But at its heart, law is a major part of the fixings that hold a democratic system of government together. Laws themselves are capable of reform via conventional institutional processes and they should be regularly revised to meet changing circumstances. If the system itself is attacked and undermined beyond repair, at best the role of law becomes questionable and at worst the law ceases to provide the protection and support that people enjoy and benefit from.

It feels like a moment of some tension as we wait to see what happens next. On Valentine’s Day, as someone who fell in love with the law as an undergraduate longer ago than I care to remember, I hope it emerges relatively unscathed.