When they came for the rule of law, I said nothing; I was, of course, no statute

Will Baude at Crescat Sententia objects to those who see the administration's "war on terror" policy as a threat to the rule of law, saying "the fact that powerful agents of the government justify themselves with constitutional arguments whose correctness can be debated is not an 'attack on the system' of law and lawyering, but rather a recognition of its true power." This seems mistaken to me, but mistaken in a way that's worth dissecting.

The argument seems to be that so long as political actors feel the need to justify their actions with legal and constitutional arguments, and so long as these arguments meet some very minimal threshold of plausibility (more or less: "some tenured professors at top schools have endorsed them"), their behavior isn't a threat to the rule of law--even if the arguments are rejected by most legal/constitutional experts, even if they refuse to adjust their behavior in response to legal/constitutional critiques, and even if this behavior is with the aim of greatly expanding executive discretion. This is so because the very act of *offering* these arguments serves to bolster the idea of legal and constitutional constraint; by contrast, imagine if the administration didn't even pretend what they were doing was legal or constitutional.

The obvious point, first, is that just because things could be worse doesn't mean they're not bad. But the more important point is that bad faith arguments for executive discretion, or weak arguments maintained in the face of overwhelming criticism, can sometimes be just as dangerous to rule of law values as explicit illegality. This is so for two reasons: first, there is an *inherent* threat to the rule of law from executive discretion; second, the rule of law requires that there be clear, known legal norms, *and* that those norms effectively constrain the powerful.

1. Executive discretion has always been difficult to square with the rule of law, because the entire point of allowing such discretion is the belief that, in some areas, it is more important to have the swiftness, secrecy, and particularism that only discretion affords than it is to act only in accordance with clear and promulgated rules. Obviously, then, a society committed to the rule of law cannot be one of untrammeled executive discretion; equally obviously, no modern nation-state can be so devoted to the rule of law so as to eliminate discretion completely (even A.V. Dicey acknowledged the propriety of, e.g., Acts of Indemnity in such cases).

When an administration claims that the scope of its discretion authority is as sweeping as this one has done, therefore, it is asserting that rule of law values are less important than other desiderata; it is claiming, in short, that we have too much Rule of Law. Perhaps the administration's claims are a plausible reading of our Constitution, though I doubt it; regardless, they are a change, and a retreat from the ideal of law-governed state action.

2. In the world of pure abstractions, there is no paradox in the idea of a dictatorship instantiating the rule of law: hypothetical Rex (or perhaps Hercules) would be such a paragon of enlightened virtue that he would clearly see how his general, promulgated norms applied to each situation and voluntarily act in accordance with them.

In our world, this is patently absurd.

It is a sad lesson of history that the powerful obey the law because they are compelled to, not because of their virtue (see Stephen Holmes' "Lineages of the Rule of Law," and this volume generally). The point of having independent review of state action is not that unreviewable conformity to the rules is impossible, but that it is not incentive-compatible. Ex post review is one of the ways we attempt to balance swift and particularist action with rule-of-law values; we allow for discretion within certain boundaries, or guided by certain standards, and insist on evidence that this was adhered to. When an administration attempts to limit review of its actions, just as when it tries to expand the scope of that discretion, it is claiming that we have too much constraint by law.

A more subtle point concerns the relationship of bad-faith or weak argument to the legal system. Baude is quite right that we would have much more to worry about if the administration simply announced that henceforth it wouldn't bother to consider the constitutionality of its actions; on the other hand, the outcry, impeachment, and disgrace that would follow would send a nice signal pour encourager les autres. I don't mean to endorse any general "the worse, the better" view of politics; my point is simply that the example is a bit of a red herring, because such blatant disregard for legality remains something that our political system can effectively deter.

Within the realm of what one can get away with, though, bad-faith/weak arguments have a particularly pernicious character. This is not simply because they diminish our confidence that the administration will in fact be bound by rules in the inevitable cases when independent review is impossible. They also introduce unnecessary uncertainty about the identity, and even metaphysical skepticism about the existence, of the legal and constitutional rules in question. This is because of the nature of public, political rules (here I get controversial); they are picked out by an idealized "cottoning-onto" reaction to examples of their use (apologies to Philip Pettit for the appropriation). As paradigmatic exemplars of this sort, the official policies of presidents inevitably shape the future development of the constitution and the laws.

What this means is that the idiosyncratic constitutional theories of presidents will *inevitably* introduce extra "constitutional dissonance" into the system, enlarging the set of "plausible" arguments. The wider this set of arguments, the harder it is to actually enforce constitutional and legal rules against those who would flout them, whether through political or judicial checks. This is not always a bad thing, on net: it may sometimes be the case that the current Constitution is a wicked one, and needs to be pushed in a more just direction, short-term indeterminacy be damned. No doubt this is the administration's view, at least among those in it who actually care about the Constitution. But even so, the cost to the rule of law is real, and must be acknowledged.