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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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Obama vs. the Rule of Law


Some people believe that the term “the rule of law” means that people are expected to obey the law. You hear this often from public officials, who say such things as, “People might not agree with the drug laws or immigration laws, but the rule of law dictates that people obey the law so long as it’s the law.”

Actually, the term means something entirely different. It means that the government is prohibited from punishing people on an arbitrary, ad hoc basis for what the government considers are wrongful acts. When a public official wields the power to punish people for wrongful acts that have not been enshrined into the law, we call that “the rule of men.”

The idea is that people should have to answer only to well-defined laws that have been enacted in advance of criminal punishment. In that way, people can adjust their conduct and decide whether to risk violating the law. But the point is that they answer to the law, not to the ruler’s arbitrary, ad hoc edicts.

Thus, the rule of law is necessarily a prerequisite to a free society. Under a regime governed by “the rule of men,” the government can punish people for whatever it happens to define as a crime at that particular time. When people are subject to that type of arbitrary power, there is no way that people in that society can genuinely be considered free.

However, while the rule of law is a prerequisite to a free society, it doesn’t necessarily guarantee a free society.

For example, let’s say that a regime is operating under the rule of men, that is, one in which the police can arrest anyone they want for committing what the police consider is a bad act. One day, the police see Joe Blow smoking a cigarette. They slam him against a wall and scream into his face, “Don’t you know how harmful cigarette smoking is to your health? Why, you’re hurting your family, and society is going to have to pay your medical bills when you get cancer. You’re under arrest and you’re going to serve 6 months in jail for harming yourself, your family, and society.”

Obviously, people in that society cannot be considered free.

Suppose, however, that the police lack the authority that comes with “the rule of men” but the legislature enacts a law that criminalizes smoking. Now people have a well-defined law enacted in advance that they can read and adjust their conduct to. They don’t have to worry about some cop deciding to harass them or jail them for something that is not set forth in a duly enacted law.

However, even though the system is operating under the rule of law, the people in that society still cannot genuinely be considered free. Why? Because the law itself is an illegitimate interference with the freedom of the individual to ingest whatever he wishes to ingest.

Recently, President Obama instituted a variation of the rule of men in the area of immigration. He announced that he would refuse to enforce a duly enacted immigration law requiring deportation of illegal immigrants against an entire class of people in society–i.e., those illegal immigrants who came to the United States as children.

Obama’s act was obviously motivated by politics, given that he would love to garner a larger number of votes from Hispanics in the upcoming presidential election. But it was also a manifest violation of the rule of law.

Immigration laws themselves are a violation of the principles of liberty, specifically the rights of freedom of association, freedom to travel, freedom to move, and economic liberty.

There is also the principle of civil disobedience to consider, especially when the state enacts laws that contradict moral principles. From a moral standpoint, it is entirely legitimate for people to violate laws that contradict moral principles or the principles of freedom.

But that’s not the situation we have with President Obama. Here, an immigration law has been duly enacted by Congress and signed into law by the president. And Obama firmly believes in immigration laws. If he had concluded that the law was unconstitutional, he could refuse to enforce it entirely against everyone or he could file suit in the federal courts to have it declared unconstitutional. He could also prioritize the enforcement of the entire law, telling the Justice Department to give it lower priority in time and resources than other laws.

That’s not what Obama has done here. What he’s done is carve out a privileged class of people that he has determined should be immune from the law that he himself believes in. Under Obama’s edict the law will be enforced against everyone in society except those who have had Obama’s cloak of privilege wrapped around them.

That is the essence of a society based on the rule of men. Obama has instituted a system in which the ruler can decide which people in society will have laws enforced against them and which people will be subject to the laws.

Suppose, for example, that the president decrees, “I hereby order the Justice Department to enforce the drug laws against everyone except those who are over 40 years old.” Would that be a benefit to older people who ingest drugs? Of course. Would it be likely to garner votes for the president? Of course. But would it be consistent with a society based on the rule of law? Absolutely not because the law will only apply to people whom the president wishes to apply it to. That arbitrary, ad hoc power is nothing more than a variation of the rule of men.

Finally, there is a utilitarian factor at work here as well. When a bad law is being applied against everyone, then everyone has an incentive to get the law repealed. When the president instigates a system in which he is immunizing certain classes of people from enforcement of the law, oftentimes those people lose the incentive to get the law repealed for everyone else.

In a time in which the president is wielding and exercising such omnipotent powers as assassination, torture, indefinite incarceration without trial, and warrantless searches , the fact that President Obama has now chosen to embrace a regime based on the rule the men might seem relatively minor. But it isn’t. The rule of law, while not guaranteeing a free society, is an absolutely essential prerequisite to a free society. Permitting President Obama to get away with abandoning the rule of law in the area of immigration is just one more step in a very bad direction.

This post was written by:

Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.