The Morality of Legality

A nation that is committed to the rule of law has a distinctive morality: the Morality of Legality.

The Morality of Legality helps to distinguish nonauthoritarian societies from authoritarian societies. I don’t think that it has been named before (but because there is nothing new under the sun, I might well be wrong on that count).

1.

I have been lucky enough to have had three stints in the federal government, and in each of them, I saw the Morality of Legality in action. Typically, here’s how it goes.

Someone in a high political position - maybe even the president - wants something to be done. Government lawyers try hard to find a way. On occasion they just can’t. They tell the high political officials - maybe even the president - “there’s no legal way to do this.”

The high political officials - maybe even the president - respond: “Oh. Disappointing, but I get it. We won’t do it, then.”

Here is a true story about a meeting inside the federal government. I was in the meeting, and I am not going to name names.

Two Cabinet-level Departments were in sharp disagreement about an important policy.

Department A (let’s call it) wanted something a bit more to the right; Department B (let’s call it) wanted something a bit more to the left. Department A thought that Department B’s position was unlawful.

Here is the dialogue between them, more or less:

Department A: Your proposal is unlawful, we believe.

Department B: You might well be right. But if we go our way, we don’t have to worry about losing in court. The reason is technical: No one would have standing to go to court to challenge our proposal.

Department A: Even so, it would be unlawful. And we all took an oath to follow the Constitution, which means that we have to follow the law. Doing what you propose would violate our oath.

Department B: No court has ever struck down a policy on the ground that it violated the oath of office. And in any event, no court would be available in this case.

Department A: (momentarily silent, speechless, baffled, aghast).

What we had there was a failure to communicate.

Department B was focused on this question: Would the policy be struck down in court? Department A was focused on a different question: Was the policy unlawful?

Department A thought that a failure to attend to that different question was immoral. It was speaking on behalf of the Morality of Legality (and happily, it ultimately prevailed in the internal debate).

2.

Those who are committed to the Morality of Legality insist that it is a moral wrong to violate the law, even if no court is available to say so. They also believe that it is a moral wrong to adopt a policy that violates the law on the ground that it would be popular to do that, or on the ground that some high-level official, up to and including the president, wants to do that.

In a book called The Morality of Law, published in 1964, Harvard law professor Lon Fuller famously spoke of law’s morality, which, he said, has identifiable components: the law must be publicly available; it must not be retroactive; it must be clear and understandable; it must be general; it must not change so quickly that people cannot know what it is; it must work in the world as it is written in the books; it is must not be self-contradictory; it must not require the impossible.

Fuller’s argument is essential, but the Morality of Legality is different and no less fundamental. It holds that all those who work for the federal government have a moral obligation to act consistently with law.

One more time: The Morality of Legality is the hallmark of a regime that rejects authoritarianism. For the executive branch in the United States, the Morality of Legality has a home: Article II of the Constitution, which requires the president to “take care that the law be faithfully executed.”

3.

We do have to offer some qualifications here. The Morality of Legality is violated when it is evident, to anyone who looks carefully at the legal question, that the executive branch is acting unlawfully. But it is conventional for government lawyers to speak of what they call “litigation risk.”

Lawyers might say that the likelihood that a policy will be invalidated is 10 percent, or 20 percent, or 50 percent, or 75 percent. Proceeding in the face of a small risk of invalidation is hardly a violation of the Morality of Legality. It is as the risk approaches 100 percent that we begin to see violations.

Even in such cases, there is reason for some nuance. Suppose that the executive branch believes, in good faith, that courts have long gotten the law wrong, and that the Supreme Court will set things straight, if and when it is presented with compelling arguments. We cannot say that in such cases, there is a violation of the Morality of Legality.

Or suppose that the executive branch believes, in good faith, that courts have the law wrong, and that the Supreme Court should change existing law, if it is presented with compelling arguments. Suppose that the executive branch knows that it is unlikely to be successful - but it thinks, in good faith and as matter of principle, that it ought to be able to succeed. Such cases are harder, but I think there need not be a violation there of the Morality of Legality.

The problem arises when the government does something that is not supported by a good faith argument about what the law permits or requires, or by a good faith argument that the law should be changed, with an understanding that the Supreme Court should and will change it, or even by a good faith argument that the law should be changed, with an understanding that the Supreme Court should but will not change it.

4.

The Morality of Legality deserves to be identified and celebrated in any year. But these notes are - how to put it? - not not prompted by a flood of recent actions from the executive branch that do not show a ton of respect for the Morality of Legality.