Do Laws Matter?

Below is today’s column exploring the growing anger of voters and the possible linkage of controversies ranging from the bank bailouts to immigration to the BP oil spill.

As soon as Arizona passed its recent immigration law, some reporters and commentators were quick to cast the story with the usual actors: “Tea Partiers,” race activists, conservatives and liberals. Like our politics, much of our news media coverage has become a clash of caricatures — easily categorized groups with one-dimensional motives for mass consumption. Some commentary even suggested that supporters of the law are either open or closeted racists. Rep. Keith Ellison, D-Minn., recently called the law both “fascist” and “racist.”

Though I am a critic of the Arizona law, I do not view its supporters in such one-dimensional terms. Indeed, I do not view the public response in purely immigration terms. Whether it is illegal immigration or the mortgage crisis or corporate bailouts, there seems to be a growing sense among many citizens that they are expected to play by the rules while others are exempt.

With polls showing about 60% of people supporting the Arizona law and almost half supporting similar laws in their states, it is implausible to suggest that all these people are racists or extremists — let alone fascists. Notably, a majority of Americans also opposed the bank bailouts and mortgage forgiveness. In each of these controversies, there is a sense that the government was stepping in to protect people from the consequences of their actions.

In the mortgage crisis, tens of thousands of people accepted high-risk, low-interest loans while other citizens either declined to buy homes or agreed to higher monthly payments to avoid such deals. When Congress intervened with mortgage relief, some of those who had acted responsibly wondered whether they acted stupidly by rejecting low rates and later federal support.

Bailouts and immigration

Then there were the corporate bailouts. For citizens to secure a loan, they have to meet exacting terms and disclosures. Yet, when banks and firms concealed risks or engaged in financial wrongdoing, Congress bailed them out and allowed their executives to reap fat bonuses. The laws on fraud and deceptive practices simply did not seem to apply to them. Just as several companies were declared “too big to fail,” many of their executives appeared too big to lose money — unlike the millions of citizens burned by their business practices.

Those prior controversies coalesced with the immigration debate. The last time Congress granted amnesty to illegal immigrants was 1986 — and it was criticized at the time for rewarding those who had evaded deportation. Complaints over the lack of federal enforcement had been percolating for years but exploded along Arizona’s long desert border. When a law mandated state enforcement of federal laws, the Obama administration moved to block it.

Indeed, high-ranking Obama officials such as John Morton, head of the Immigration and Customs Enforcement, have suggested that they might refuse to deport those arrested under the Arizona law. While we continue to tell millions around the world that they must wait for years to immigrate legally, Congress and the White House are considering a new amnesty proposal to benefit an additional 11 million illegal immigrants.

In each of these areas, the perception is that the law says one thing but actually means different things for different people. It is a dangerous perception, and it is not entirely unfounded. Such double-standards have become common as Congress and presidents seek to avoid unpopular legal problems.

•Torture: While acknowledging that waterboarding is torture and that torture violates domestic and international law, President Obama and members of Congress have barred any investigation or prosecution of those crimes.

•Pollution: While citizens are subject to pay for the full damage they cause to their neighbors and are routinely fined for their environmental damage for everything from dumping in rivers to leaf burning, Congress capped the liability for massive corporations such as BP and Exxon at a ridiculous $75 million. Though BP is likely to spend much more in litigation (particularly if prosecuted criminally), the current law requires citizens to pay the full cost of their environmental damage while capping the costs for companies producing massive destruction.

•Privacy: When the telecommunications companies found themselves on the losing end of citizen suits over the violation of privacy laws, Congress (including then-Sen. Obama) and President Bush simply changed the law to legislatively kill the citizen suits and protect the companies.

An arbitrary system

The message across these areas is troubling. To paraphrase Animal Farm, all people are equal, but some people are more equal than others.

A legal system cannot demand the faith and fealty of the governed when rules are seen as arbitrary and deceptive. Our leaders have led us not to an economic crisis or an immigration crisis or an environmental crisis or a civil liberties crisis. They have led us to a crisis of faith where citizens no longer believe that laws have any determinant meaning. It is politics, not the law, that appears to drive outcomes — a self-destructive trend for a nation supposedly defined by the rule of law.

Jonathan Turley, the Shapiro Professor of Public Interest Law at George Washington University, is a member of USA TODAY’s Board of Contributors.

USA Today: June 15, 2010

117 thoughts on “Do Laws Matter?”

  1. Karl:

    I watch the US Farm Report program regularly on Sunday mornings. They just recently said that about 90 percent of US farms are family owned farms, not agri-business giants. It makes sense that bigger farms farm larger plots, does it not? Those big farms help feed the hungry throughout the world. What an awesome blessing to needy people overseas. Small family farms could NEVER meet that need since Americans, in general, are simply not interested in sufficient numbers in being farmers at the levels needed for providing this great benefit to mankind.

    The Farm Report folks also officially opposes Federal subsidies, so federal government intervention really isn’t necessary.

    Ronald Reagan was not perfect. I never said so. Silly people seek perfection. He did many things I oppose. He was the lesser of evils. I am not a republican, but I became one to vote for him. His revolution never got off the ground as it was killed upon arrival by the neocons (old leftists like Michael Medved and Bill Bennett) who gave the Rockefeller wing of the GOP (Bush/McCain)the shot in the arm they needed before it died off. That is what hurt the GOP most over the past 20 years.

    You seem to think leaders are perfect. How very strange. So I guess you must dislike them all at least as much as you dislike Reagan since none are perfect and therefore odious to you. Ron Paul and his supporters have no misconceptions about Ronald Reagan. They are realists. Some Ron Paul supporters hate Reagan (over at Lew Rockwell, for example). They can suit themselves.

    Confucius said that it takes a long time to turn around a big ship. Or did he say that government was like frying a small fish (a lot of preparation, fuel, and energy for very little reward). I forget which thing he said.

    Either way, we have a very big ship to turn or a tiny fish to fry. The trick is to select the guy or gal closest to your viewpoint, whether in a major party or not.

    In 2008, I voted for a third party candidate for president for the first time in my life.

    It was liberating.

  2. The people always had one last best hope in the Supreme Court to make the final equitable decisions of our laws. And they were willing to abide by those decisions.

    Now, between the politics of choosing and those of abusing the chosen, that last bastion of a lawful society is crumbling before our eyes.

    If lawlessness prevails, if foreign investors determine that this country is no longer stable enough to invest in, our final economic collapse will occur.

    Even if we remain a reasonably lawful people, and somehow avoid a terrible economic collapse, demographics are against us.

    You might say demographics are the ticking time bomb of our civilization. Life spans have nearly doubled between the beginning and the end of the 20th century. They may nearly double again before the end of the 21st century. Unless we have some breakthrough in either space travel, or human productivity, the coming famines (or pollution – or super-bugs) will decimate the population much as various plagues led to the Dark Ages in Europe.

    Then we get to start over – maybe.

  3. The REASON why it’s like this is because we are in the midst of a White House Coup similar to the Business Plot attmped in 1933. How I know this is because I was in a family for more than 26 years who are directly involved and linked to the big finanicial groups who are leading the Coup.

    The goal of the Coup is to establish Martial Law which allows them to establish a dictatorship. You may want to ask yourself why are they so obvious with their lies? It’s because they feel at this time they have the Coup in the bag. But I can tell you that that isn’t so and everyone will find out soon how true what I said is.

    Marty Didier
    Nortbhrook, IL

  4. JT,

    Wonderful essay.

    AY,

    And brought to Vienna by the invading Turks. Who were defeated thanks to the help of a Pole. Who requested his reward be the provisions left behind by the defeated Turks, with which he opened the first coffee shop.

  5. “The Least Dangerous Branch, depending on proclivities, is left to decide the resulting controversies based on muddling through, trying to map 21st century problems to 18th century principles, or social justice.”

    If the principles are correct it makes no difference if they are applied in 400 B.C. or 2,500 A.D. Which is part of the problem, people don’t apply principles to a given situation. The law should be an objective set of rules/principles with which to guide human interaction. It seems to frequently that laws are passed to address a single issue with no concern to see whether the law is even necessary or if principles can be used in the application.

  6. Blouise:

    “We suffer from a national infestation of the “peter principle”.”

    How right you are, there are dicks everywhere in our government.

  7. Well as anyone can tell you and Kenneth Lay is no exception, Laws only matter when you are tried and convicted.

    Laws do not matter if you are never charged, to wit, Dick Cheney, Shooting the guy in south Texas while Drunk. Anyone else would have been charged with reckless discharge of a firearm. Exercising stock options while Veep (in a two year period) that netted 234 million after while the US was gearing up for a conflict with Iraq. W, for his complicity.

    Let me tell you how stupid W is or lack of business acumen. His first year out of office he earned less that 750,000 including presidential salary. Obama more than 5 million while in office his second year. I am beginning to think, “W” was the first puppet president in the US and Obama is the second. I could be wrong.

    But back to the story, Laws only matter if you benefit or are harmed by them.

  8. I attribute much of the problem to the 1,070 chancellors’ feet in Congress who produce such profuse law that there is bound to be warrant for almost any outcome. For that much of the blame must be placed on the revolving door of tweaks to the Internal Revenue Code of 1986, campaign donations and the resulting arms race in campaign spending.

    The executive branch, under the goad of the 140-character news cycle, shares responsibility for responding to the imperative of Chicken Little journalism and do-something-do-anything.

    The Least Dangerous Branch, depending on proclivities, is left to decide the resulting controversies based on muddling through, trying to map 21st century problems to 18th century principles, or social justice.

  9. Mespo,

    From John Adams:

    “It is weakness rather than wickedness which renders men unfit to be trusted with unlimited power … Because power corrupts, society’s demands for moral authority and character increase as the importance of the position increases.”

  10. I think the Professor’s point is that we have a nation of lawmakers who feel more allegiance to the special interest groups that elected them than to the notion of the nation as a whole. This is nothing new. What is new, as BLouise, points out is the relative brain drain of those in positions of power. I have seen a renounced decline in the acumen of our politicians over my lifetime, culminating (I hope) with the Sarah Palin know-nothing demagogues of the world. Posers like Palin and Bachmann would have been ostracized by both parties in the past, not because of their views but because of the lack of substance supporting those views.

    The difference here is significant because the thing the kept the nation together in the past, even with the influence of special interests, was the realization by those in authority that promoting special interests over that of the nation as a whole was a zero sum game. Today, these whores of Babylon think the nation can absorb any abuse due to its manifest greatness. In their stupidity, hey fail to see each pinprick in support of their particular faction deflates us all.

    Madison describes the problem in Federalist 10:

    The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good.

    (…)

    It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

    (…)

    From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

    A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

    Madison’s faith in Republicanism is admirable. What he didn’t count on was an almost criminal sense of “getting mine” at the expense of the nation by its leadership.

  11. I am in agreement with your overal point Professor but take issue with one item. You wrote:

    “When Congress intervened with mortgage relief, some of those who had acted responsibly wondered whether they acted stupidly by rejecting low rates and later federal support.”

    That really is a bogus argument. Given the very, very few people who were assisted in keeping their homes or having their mortgage adjusted in any way by government action it really is absurd to use this particular example along with the others. The government programs designed to assist homeowners are tiny and have had almost no impact on the mortgage crisis because of how ineffective and unworkable the programs are. The thing that concerned most Americans was not why a handful of individual common citizens managed to get some government assistance in keeping their homes, but rather the astronomical amount of money spent without any thought for safeguarding the public interest that went to a relatively small number of crooked bankers and men guilty of massive fraudulent investment schemes who were not simply assisted in not losing their homes, but who were allowed to reap obscene wages and bonuses at the expense of the common people just so the crooks could stay rich.

  12. Justice for all is the goal but I don’t think we have ever had it in the USA.

  13. We suffer from a national infestation of the “peter principle”.

    Elected politicians, lobbyists, bankers, Wall Streeters, CEOs of large corporations, police departments chiefs, and others in positions of leadership have become unruly and no longer restrained or controlled by law. Having reached the pinnacle of their individual professions but yet lacking the actual abilities to perform the job, they predictably seek the path of least resistance mistaking slyness for intelligence and bravado for courage. Delinquency is their desperate, inevitable, and only choice.

    The shallow news media, by and large, partners with the lawless, acquiescing in daily cover-ups of wrong doing, preferring to hob-nob with the bad guys and join their partying.

    It’s a beerfest of incompetence.

  14. James,

    Treason is the only Constitutionally defined crime.

    Art. 3, Sec 3 provides that “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

    The Congress shall have power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”

    Saudi Arabia funded and manned the attacks on 9/11. The hijackers were: Mohamed Atta al Sayed (Egyptian), Waleed al-Shehri (Saudi Arabian), Wail al-Shehri (Saudi Arabian), Abdulaziz al-Omari (Saudi Arabian), Satam al-Suqami (Saudi Arabian), Marwan al-Shehhi (United Arab Emirates), Fayez Banihammad (United Arab Emirates), Mohand al-Shehri (Saudi Arabian), Hamza al-Ghamdi (Saudi Arabian), Ahmed al-Ghamdi (Saudi Arabian), Hani Hanjour (Saudi Arabian), Khalid al-Mihdhar (Saudi Arabian), Majed Moqed (Saudi Arabian), Nawaf al-Hazmi (Saudi Arabian), Salem al-Hazmi (Saudi Arabian), Ziad Jarrah (Lebanese), Ahmed al-Haznawi (Saudi Arabian), Ahmed al-Nami (Saudi Arabian), and Saeed al-Ghamdi (Saudi Arabian).

    See the pattern?

    After Cheney’s Secret Energy Task Force met, Cheney via Bush ordered the illegal invasion of Iraq – a country that had nothing to do with 9/11. Attacking his father’s and Dick’s business partners in Saudi Arabia did not happen although clearly they were the aggressor. This diversion of the military from a legitimate goal for their own personal profit constitutes “adhering to their Enemies” and “giving them Aid and Comfort”.

    Saying Dick Cheney and everyone in the “Secret” meeting are traitors isn’t polarizing.

    It’s accurate.

  15. Tony,

    As ever, hope is the main blade which sociopaths wield. Everyone wants “things to be better” even if there is variation to the personal meaning of “better”. To be elected, clearly Obama exploited the hope of restoring the Constitution after the abuses of the Bush regime. Now he is simply an aider and abettor to treason after the fact.

    Our current national path ends in fire and blood when the 99% come for the 1%. They eventually will too. No amount of private or public security will be able to protect them either. The numbers are too disparate. And a lot of innocent people who want nothing more than to be left alone to live their lives are going to get hurt in the process.

    There was once a regular poster who took exception to my spreading this cautionary message. She went so far over the edge in making the attacks personal (against more persons than myself), she was eventually banned. I’d like to say “he who laughs last laughs best” but there is nothing less funny than treason and tyranny.

    Buddha Is Not Laughing. Buddha Is Righteously Pissed Off.

    My allegiance is, as it has always been, to the Constitution. Not the President. Not Congress. Not SCOTUS.

    Justice for all . . . or justice for none.

  16. @James M:

    No. “Political Extremism” is what produced this country, and most countries. My highly polarized attitude (and probably that of others) is due to the level of corruption and hypocrisy I detect; trying to compromise with criminals endorses the criminality and ensures it will continue.

    How much buying of votes SHOULD we tolerate? How much SHOULD we allow politicians to exempt themselves from the laws that apply to the rest of us? How much SHOULD we let the wealthy and celebrities buy their way to more lenient sentences and punishment, and how much SHOULD we let them buy their way out of any charges at all?

    Look at the celebrities that get sentenced to 3 months of rehab for cocaine abuse, versus the kids that get sent to hardcore prison for life for exactly the same offense. How much of that SHOULD we tolerate?

    Compromises on policy are one thing; compromises on principles and equality and responsibility and culpability are unacceptable. THAT is what is generating MY polarization; a highly unfair system, incompetent and selective enforcement based on whatever people can AFFORD to get away with, and with few exceptions to that rule.

    I think anybody that ISN’T polarized by our situation isn’t paying very much attention.

  17. I think Kagan will prove to be okay just as Sotomayor has. Sotomayor wrote the dissent on the recent Miranda decision.

  18. I think you missed the issue completely. The problem is that our government is no longer a nation of laws but a nation of outcomes.

    Ignore what the bankruptcy code says about the absolute priority rule – instead allow the unions to be protected at the expense of seemingly secured bondholders.

    Ignore what the law says about liability caps (however stupid the law is), let’s crucify BP because we don’t like the outcome the law provides and change the law after the fact.

    Ignore the 7th amendment right to trial by jury – let’s force BP to set up an escrow account NOW.

    Ignore what the law says about mark-to-market accounting (laws passed as a result of ENRON), let’s suspend that rule if it leads to an outcome we don’t like.

    Let’s not criminally prosecute mortgage fraudsters. It’s not fair that someone who earns $40,000/year but reports a $150,000 income be sent to jail for their theft.

    Let’s bailout businesses and individuals who made all sorts of irresponsible decision – sending the bill to the relatively few of us who (a) followed the law and (b) acted responsibly.

    The failure here is of our government. In the comming months we’ll once again listen to Senators of both parties rant and rave about the rule of law, precedent and the importance of stare decisis, yet they’re all willing to ignore the law and allow populist mob rule when it suits their political aspirations.

    An economy cannot function without the relative certainty that the rule of law provides. Where there is uncertainty markets fall.

    Perhaps we the people should start holding our representatives more accountable for the stupid laws the pass. Laws which allow polluters a way out. Laws that allow CEO’s to make bad business decisions, reap outrageous profits and then send the bill to the rest of us. Laws that limit the tax deductibility of individual’s charitable contributions but will allow every penny of clean up cost to be deductible from BP’s tax returns.

    Laws don’t matter when they’re not enforced and increasingly we’re not enforcing the law because we don’t like the outcome.

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