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Presidents, the Rule of Law, & the State of Exception


The Supreme Court’s immunity ruling is not a change of policy, but an acknowledgment of a dark reality.

“The court effectively creates a law-free zone around the president, upsetting the status quo that has existed since the founding,” wrote Sonia Sotomayor in her dissent on the presidential immunity case. “Ironic isn’t it?,” she continued, “the man in charge of enforcing laws can now just break them.”

But it’s not ironic; it’s redundant. It’s always been quite evident that the president of the United States is above the law. This has been affirmed many times, including fairly recently, as Robert Mueller indicated that he could not indict President Trump because of Justice Department policy. If he could not indict Trump, Mueller would not accuse him of a crime, even though it certainly appeared that his report was describing crimes. That is, Mueller concluded directly that the president of the United States is above the law, even as he said the reverse.

But really, the claim that the president is not above the law is quite wacky. As commander-in-chief of the armed forces, for example, he could order an invasion somewhere that kills thousands of people. Presidents do that sort of thing all the time. I feel that if I tried to kill thousands of people I would, quite properly, be subject to arrest.

If I behaved like a policeman – strutting around town with a gun, taser, and club on my hip and a cage in my car where I occasionally toss people, etc. – I would be subject to arrest. If I behaved like an IRS agent and managed to garnish your paycheck, having it deposited into one of my accounts without consulting you, you and the authorities might well regard that as theft.

People who advocate ‘rule of law’ would do well to reflect on what they mean, I suggest. Laws don’t rule, people do. Laws are texts. Texts are not the sort of things that can exercise power, that can literally constrain or liberate someone. They’re just little squiggles. And I feel that the purpose of this line of discourse is to pretend that we are not directly exercising power over you, by creating fictions that we assert are the real sources of political power. The rule of law is in this reality the rule of the enforcers.

Speaking of the founding, here is a famous bit of John Adams: “The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty.” On this basis, he famously endorsed “a government of laws, and not of men.” This, I say, is a completely explicit endorsement of anarchism. I wonder if Adams, or we, have ever seen a government that does not have the power to endanger public liberty. Indeed, we ought with the tradition to define government in terms of an asserted monopoly of violence. Every government that has ever existed has the power to endanger public liberty, by definition.

So I think that liberals and advocates of the rule of law need to face up to this. They can go one of two ways: forget the whole idea and go back to squarely endorsing the rule of some people over others, or repudiate the coercive state. If they still want, even vaguely, to endorse the rule of law, they should take the second approach.

There could, I believe, strictly speaking, be a real rule of law. That would be a society in which people seem to have something like a common moral code: a set of principles that could be codified or explicitly stated. They recognize that people shouldn’t gratuitously kill, rape, or rob one another, for example. The rules are over there, on the wall. Each of us tries to hold ourselves to them and, to the extent this can be done non-coercively, to urge each other to do the same, or to point out wherein we have failed.

Now, this situation might appear absurd or impossible. But if so, so is the rule of law. Now, I’d say it’s difficult on the scale of a large society, but not at all impossible. All sorts of groups and organizations do this all the time, and do it without weaponry or internment facilities. Here are the principles we intend to live by, as Quakers, Sufis, hippies, poets, accountants. Pledge yourself to these rules. Internalize them. Act compatibly with them from now on. That is the only rule of law that is possible.

I agree with Sonia Sotomayor that it’s highly disturbing that the president of the United States has immunity from prosecution. But I also think that what the Supreme Court just did was not increase or even alter the power of the president, but simply to acknowledge the situation that already exists.

Giorgio Agamben has argued that ‘governmentality’ rests on the ‘state of exception’: that the question of government is a matter of who can suspend the law, or who can declare an emergency and change the forms in which power operates. Trump was wont to declare emergencies, at the border, or because of Black Lives Matter protests. He evidently agrees that the essence of government is the ability to suspend the government.

But the everyday reality is more quotidian than the big “state of emergency”. The state of exception is continuous everywhere a government operates. The state in its everyday activities, suspends for itself and by definition the rules it applies to its citizens. If you think this is terribly wrong, and you follow the implications of that, you will soon be an opponent of the political state.

Crispin Sartwell’s most recent book is Beauty: A Quick Immersion.