Thoughts about law, lawlessness

“No president I know of has asserted a blanket power to reject any request that doesn’t suit him—until Donald Trump” Garrett Epps, Professor of constitutional law at the University of Baltimore

As our nation is approaching the upcoming campaign season for the 2020 national presidential elections, the citizenry must up their game of engaging in due diligence to discover which of the myriad of candidates are uniquely qualified to serve as our leader.

In a May 19, 2019 column for the Atlantic online edition, Mr. Epps writes that he confronts his law students with two questions; “What is law?” and “What is lawlessness?”

Beginning with the latter, it comes in two forms; Anarchy, or a brute force, brought about through stealth, providing a semblance of safety; and, authoritarian lawlessness. Which he suggests is far more common in today’s reality.

Epps asserts the U.S. Code which authorizes the chairman of the House Ways and Means Committee to make a written request to the chairman of the Joint Committee on Taxation and the Secretary of the Treasury to furnish the committee with any return or return information specified in such request, subject only to a requirement that the return be considered in closed session.

Mr. Trump’s Treasury Secretary Steven Mnuchin refused to comply, citing the request “lacks a legitimate legislative purpose.” However, signed into law by Congress as part of the Tax Reform Act of 1976 (signed by Republican President Gerald Ford, by the way), like all statutes, it is the law of the land. Mr. Epps asserts there is no provision requiring a “legislative purpose” at all, adding, [the code text] says, “shall furnish.” In conclusion, the lawful response is, “Here they are.”

If this were you or I refusing to comply, we would likely be going to jail. Even executive privilege is insufficient, according to the author, based on a limited set of exceptions, such as military and law-enforcement secrets, or specific advice given to the president and certain deliberations over policy.

Epps makes a valid case that the administration’s argument is not a legal dispute, but simply that the law and the Constitution are irrelevant when they conflict with the president’s will. He quotes an old Roman principle, translated from Latin into English, “What pleases the prince has the force of law.” Thus the title of Epps’ column, “What Pleases Trump Has the Force of Law.”

Because the Constitution doesn’t specify with direct language, i.e., Congress must create an Army or Navy, even to appropriate any funds for any purpose at all, it doesn’t mean it should not nor need not. Epps argues, these are the constitutional norms, established over decades. And without norms, the Constitution is toothless.

We fund defense, because of the need to protect our nation from enemies, both foreign and domestic. We fund the Justice Department because of the need to establish a stable, acceptable rule of law for all citizens. We fund all other governmental entities because they fulfill a vital utilitarian role which individuals are unable to do on their own.

Further, Epps writes that “rule of law” meant that “both the government and the people existed in a binding legal framework, and that both respected the decisions of legislatures, and courts, even when they disagreed with them.”

Today, he concludes, our current administration has no intention to not only disobey the laws of the land, it does not respect the decisions of previous and current legislatures and courts, deeming them irrelevant.

Regardless of our political preferences, right or left, one can rightfully debate and argue whether one aspect of behavior is lawful or should be illegal. Either way, lawlessness, or anarchy, is not a preferred option, as it brings our society further down the slippery slope of an undesirable and inequitable form of governmental oppression.

Lastly, one primary fear going forward is this; we may well be witness to the last days when either political party disrespects the democratic process of representation and governmental control as it currently is with our Republic, enough so that as elections bring about the transition of power from one majority to the other, a peaceful transition of political power may well end.

I well remember the crises of past eras; the nuclear standoff with Russia, JFK’s assassination, space shuttle Challenger’s dying moments, September 11, 2001. The great recession of 2007-2008. Even in the midst of our internal squabbling, we were unified as Americans. Perhaps this will soon end.

Question; Will we add another date which may live in infamy?