Law Professors and the Rule of Law
Last week, thirty-three faculty at the University of Nebraska College of Law (myself included) sent a letter to each of the members of our State's Congressional delegation alerting them to our concerns that the rule of law is in peril. (Needless to say, this blog post is written in my individual capacity. It does not purport to represent the views of the University of Nebraska, its law school, or any of my colleagues.)
The letter reads:
We are current or emeritus faculty at the University of Nebraska College of Law. (We each sign this letter in our personal capacities; our views do not purport to represent the position of the University of Nebraska or its law school.) We are Democrats, Republicans, and independents; we disagree with each other about many important legal and political issues. We have, however, dedicated our careers to teaching the importance of the rule of law and the role the law plays in sustaining our society. We are concerned that the rule of law is in peril, and we urge you to be vigilant in its defense.
Our concerns arise from the
following:
1. The revocation of student visas, apparently based solely on the students’ exercise of their First Amendment rights of free speech. The courts have made clear that citizens and non-citizens alike are protected by the First Amendment.
2. The failure to provide even minimal due process protections to immigrants prior to their deportation. That failure has resulted in an admission that mistakes were made and that individuals were deported without a proper basis for doing so, and yet no action has been taken to rectify the mistake.
3. The threat to the rule of law and separation of powers resulting from the systematic attacks on the federal judiciary and the failure to fully comply with court orders, including rulings from the U.S. Supreme Court.
4. The threat to the rule of law resulting from systematic attempts to retaliate against law firms whose only offense has been to zealously pursue their clients’ interests – an obligation we teach our students is the responsibility of a lawyer.
These should be of concern to
all Americans. If the government can punish non-citizens for their
speech today, it can do the same to citizens tomorrow. If the government can send non-citizens to an
El Salvadoran prison without due process, it can do the same to citizens. If the government of today can abuse the law
in one direction, a future government can use its force in the opposite
direction. If an attorney is threatened
for representing one interest today, she may be threatened for representing your
interest tomorrow.
If our nation is going to check these federal abuses of power and restore the rule of law, Congress must play an active role. For the sake of preserving the Constitution and protecting future generations, we urge you, as our representative, to insist fully and actively on adherence to the rule of law and to exercise your authority accordingly.
[names omitted]
* * * *
A couple days after sending the letter, we notified various Nebraska media outlets, and since then it has been a relatively prominent story in Nebraska newspapers, radio, and television. The Lincoln Journal Star, for example, had a long front-page article about the letter last weekend.
Since then, there's been an outpouring of support from the community. My colleagues and I have received numerous texts and emails from friends, former students, and complete strangers, including self-identified Republicans, thanking us for standing up for the rule of law. One alum decided to donate money to our law school just because of our letter. My daughter's high school history teacher (unaware of the family connection) told some students during an informal, out-of-class conversation that the letter was an important wake-up call to Nebraska citizens and representatives. A local farmer stopped me at the weekend farmers' market to tell me how much he appreciated our message. (Of course, I'm sure some people didn't appreciate the letter; I haven't heard from any of them yet.)
I am, of course, under no delusions that our letter will make a big difference in national politics. I am also well aware that many far more prominent academics, journalists, and public figures are also making similar points. People who know me well will also know that I do not relish the attention. At a time, though, when the current administration seems to delight in violating the rule of law, it felt important to implore our Congressional delegates to defend the Constitution.
Part of the reason is that the other checks in our system aren't working. In past administrations, including during President Trump's first term, White House advisors and various executive branch officials have sometimes checked presidents' worst instincts. In his second term, President Trump appears to have surrounded himself primarily with sycophants who do his bidding. Moreover, as I blogged about recently, given the rise of the unitary executive theory, the President today might have more control over the rest of the executive branch than ever before. We cannot expect checks on this President to come from within the executive branch.
Courts, for their part, have pushed back in important ways, but the administration has avoided fully complying with judicial rulings against it. The President has also denigrated judges who ruled against him and even threatened them with impeachment. He's also attacked law firms, thereby threatening anyone who tries to use the courts to curb his power. Though President Trump recently did say he would comply with Supreme Court rulings, it is reasonable to wonder, given his track record, whether he will in fact do so, especially given that he has also said he doesn't know if he needs to follow the Constitution.
That leaves Congress, which so far has done very little. Democrats have tried, but they control neither chamber and have been too feckless and disorganized to mount a successful response. With some important exceptions, most Republicans have only supported the President, refusing to call out even his most flagrant abuses of the rule of law.
As Senator Lisa Murkowski (R-AK) explained recently, the primary explanation for the Republicans' silence is fear. "We are all afraid," Senator Murkowski admitted. "I’m oftentimes very anxious myself about using my voice, because retaliation is real. And that’s not right.”
Of course, some Congressional Republicans are fully on board with most everything President Trump does. Nothing any of us says will change those representatives' minds. But Senator Murkowski's characterization is probably an accurate portrait of many, perhaps even most, of her Republican colleagues. Many of them know that the President's actions are beyond the pale and severely threaten the Constitution and the rule of law. They're just too afraid of President Trump to speak up, especially publicly.
I do not want to belittle these fears; they are very real. The rest of us share those fears. I suspect almost everyone who believes this administration is violating the rule of law has had similar thoughts. I certainly have. While retaliation against law professors who did sign the letter would blatantly violate the First Amendment, it is not unthinkable, even though it probably would have been unthinkable even just a few years ago. The same farmer who thanked me for the letter lowered his voice later during our conversation and asked if I had experienced any retaliation yet. "It's crazy that I even need to ask that question, but I think that's where we are," he said.
Law professors alone cannot change this state of affairs, but they can do their part. Law professors have dedicated their careers to researching and teaching the law. Though we each have our own political biases and personal idiosyncracies, by virtue of our positions and expertise, we also have the luxury of defending the law rather than a particular client or cause. As a former colleague and early mentor of mine once put it, "law professors are guardians of the law."
It's therefore significant that so many American law professors are alarmed at the attacks on the rule of law. The New York Times recently surveyed legal scholars, and thirty-four out of thirty-five, liberals and conservatives alike, agreed that Trump is a lawless authoritarian. That bipartisan consensus is important. Even people who frequently disagree with each other about law and politics agree that this administration poses a unique threat to the rule of law. That unified message also helps rebut the administration's own legal arguments, which often have been so weak that judges have criticized the Justice Department's "shoddy work."
As a professor who is fortunate enough to teach at a flagship state law school, I might add that professors at state law schools have a unique and important position. Of course, professors at private schools have an important role to play as well, but state law schools, perhaps especially flagship state law schools, play a special role in their states. Perhaps especially in smaller states, many state legislators, judges, and officials are graduates of their states' public law schools. A lot of these public officials are grateful for the education they received (often at a very reasonable price) and remain engaged with their law schools. Likewise, many law professors at state law schools play an active role in state affairs, testifying before state legislative committees, advising state legislators and officials on legal matters, speaking to local media about legal issues, and serving state bar associations. We do this kind of work because the law is important and because we believe we have an obligation to share our expertise to help our states and its citizens.
To be sure, it's not always easy to get a large group of law professors to agree on the contents of a letter. Even folks inclined to agree on general principles will quibble about particular language. (We are, after all, law professors.) In our case, after working through a few drafts, we agreed to focus on broad constitutional principles that, in our mind, all Americans should hold dear. Obviously, each individual faculty can make its own decision about the precise wording and emphasis. And, of course, political realities and internal faculty dynamics will differ in each state and school.
I am enough of a political realist to know that our letter, at best, may help a little on the margins. It might not make a difference at all. But to the extent that members of Congress all over the country are scared of the President, the voice of law professors can play a role in changing the dynamics. The numerous responses to our letter have persuaded me that people within the community care what law professors think. It has also persuaded me that many people, both liberal and conservative, are alarmed by attacks on the rule of law. If law faculty around the country reached out to their Congressional delegations and publicly urged them to protect the rule of law, perhaps members of Congress would be more willing to put aside their fears and do just that.
--Eric Berger