It has become apparent two-plus months into the second Trump administration that the fundamental issue confronting the United States is whether the rule of law or the raw exercise of power will prevail. It appears to be that simple, and that important.
The president, citing a nonexistent mandate (he received slightly less than a majority of popular votes in the 2024 election), has taken swift, drastic and wide-ranging actions to:
• Cut or eliminate agencies and departments created by congressional action.
• Terminate tens of thousands of government employees without following established government employment rules.
• Radically change U.S. foreign policy without advice and consent of the Senate.
• Deport aliens using a wartime-only statue when we are not at war.
• Rewrite the 14th Amendment.
• Indicate he is thinking about how to get a third term, notwithstanding the provisions of the 22nd Amendment.
Many of his actions have been implemented by or delegated to an unelected and unconfirmed billionaire, heading an agency that has never been created or funded by Congress.
Trump has done all of this without any effort by Congress to assert its rightful place in our system of checks and balances. The problem is much of it is contrary to statutory, regulatory or judicially decided law. What is the “rule of law,” and why is it important?
The rule of law in the U.S. is the system established under our Constitution that says the laws are preeminent and controls even the most audacious of office holders. Congress makes the laws, the executive carries them out, and the courts enforce them or strike them down if they are not consistent with the Constitution. The courts also can restrain the executive’s use of power if it is contrary to the Constitution or the laws passed consistent with it.
What is supposed to happen is that the Congress rises up and takes action to control the executive, either by depriving it of funding or passing laws that control its actions. What is supposed to happen is that the courts, when cases are brought to it by attorneys hired by those wronged by executive action, find the actions illegal and order them stopped.
What is not supposed to happen is threats to impeach judges who make rulings the executive branch does not like.
What is not supposed to happen is to have the executive orders issued attacking private law firms that have taken cases or clients the executive does not like, or for those law firms to capitulate and make agreements to help the administration in an attempt to preserve obscene levels of compensation.
Private law firms are one of the fundamental protections and elements in our legal system, and among the most shocking actions of late is attacks on them on the one hand, and capitulation by them on the other, in several notable cases.
The legal system is supposed to work by appealing decisions the loser does not like, not by attacking and trying to remove the judge making the decision. That is improper intimidation and pressure. More abuse of power.
So, what to do? We should demand our elected officials push for legal processes to be respected and followed. We should be vocal about things being done outside of legal requirements, whether or not we believe the ends sought are ultimately appropriate or not. If an “ends justifies the means” rationale is allowed to excuse the abuse of power, the rule of law becomes optional. That cannot be allowed in our country if it is to remain the republic we were designed to be.
Things such as raising revenue, cutting spending, reigning in the size of government, all may be necessary. However, they must be done by using legal means. We must hope and demand that the Congress and the courts uphold the law as superior to executive action that violates the law.
In New Hampshire, during the budget debate in the House of Representatives, a couple of particularly unfortunate decisions were made, ostensibly to save money.
One was a proposal to eliminate the Board of Tax and Land Appeals, the quasi-judicial body that hears real estate property tax appeals when assessments are questioned or tax exemptions for charities and others are granted or denied.
The board has gained expertise, and its elimination would be bad for property owners and municipalities alike in their need to get relatively quick decisions on such matters. The other was a similar elimination of the Human Rights Commission and replacement of it, like the other proposal, with an additional judge.
Both proposals undoubtedly would delay adjudication of cases and not improve the system, and should be rethought.
Brad Cook is a Manchester attorney. The views expressed in this column are his own. He can be reached at bradfordcook01@gmail.com.
