By Noah Rothman
Thursday, May 15, 2025
All it took for Democrats to recognize that cynical or
negligent leadership in the executive branch can pose a threat to the rule of
law was a humiliating defeat at the hands of Donald Trump. With the former
president’s return to office, suddenly evidence of presidential lawbreaking
became abundant and impossible for them to ignore.
The president violated the law “on Day One” of his second
term in office, said Representative Rosa DeLauro, by pardoning “hundreds of
violent criminals.” He has undermined the “sacredness of our Constitution” by
failing to follow proper procedure when dismissing executive branch employees,
Representative Grace Meng added. The president has conducted an “illegal
shakedown of the legal profession,” wrote Representative Jamie Raskin and
Senator Richard Blumenthal in a public letter to the White House. “They talk
just gleefully about impeaching judges they disagree with,” Senator Adam Schiff
observed, which is “part of a broader assault on the rule of law, a broader
effort to intimidate.”
An Education Department initiative aimed at withholding
funds from Maine if it failed to enforce Title IX restrictions on the
participation of males in women’s sports is also, according to Governor Janet
Mills, “a violation of our Constitution and of our laws.” When Raskin opened
his remarks before a House Judiciary Committee hearing on immigration
enforcement, he began by insisting that his purpose was to “restore the rule of
law” to the president’s border enforcement and deportation regime. Senate Minority
Leader Chuck Schumer concurred: “President Trump is violating rule of law in
every way.”
The president’s opponents are as prone to garment-rending
hyperbole as ever, of course. As an objective matter, though, whether as a
result of carelessness or calculated efforts to challenge restraints on
executive power, the administration most certainly has skirted the
letter of the law. And yet, the Democrats who seek to take Trump to task for
his failure to respect checks on his power haven’t taken proper stock of the
damage they did to their party’s reputation during Joe Biden’s presidency. The
scope of the last administration’s delinquency helps us appreciate the scale of
the tragedy that is now unfolding.
By August 2021, the Supreme Court had already found that
the Centers for Disease Control and Prevention did not, in fact, have the power
to declare a national moratorium on evictions. And yet, Biden boasted that the
ruling would not hinder him from wielding authority not delegated to his
office. “The bulk of the constitutional scholarship says that it’s not likely
to pass constitutional muster,” Biden said of his plan to extend the moratorium
in defiance of the courts. But “there are several key scholars who think that
it may and it’s worth the effort.” As it turned out, it wasn’t. Biden backed
down but only after a fruitless attempt to muscle the courts into affirming
that the Department of Health and Human Services had the authority to abrogate
the rights of American property owners.
The 46th president displayed a similar contempt for the
judiciary after the Supreme Court struck down the most ambitious iteration of
his plan to forgive student loans. “Early in my term, I announced a major plan
to provide millions of working families with debt relief for their college
student debt,” Biden crowed. “The Supreme Court blocked it,” he conceded, “but
that didn’t stop me.” It did. Biden soon adopted a piecemeal approach to
student-loan forgiveness. Yet he and his political allies intuited that the
progressive activist class to whom this initiative was designed to pander was
in the market for brash displays of autocratic zeal.
The former president was later goaded by his progressive
tormentors into “looking at the 14th Amendment” for evidence that the White
House had the power to unilaterally issue new debt amid congressional lethargy.
Biden himself, as well as cabinet-level officials such as Treasury Secretary
Janet Yellen, had already flatly ruled out the prospect of skirting a routine
congressional squabble over raising the debt ceiling by assuming that authority
for themselves. Left-wing activists, however, could not abide such
circumspection, and the president felt the need to flatter their tyrannical
instincts.
In the end, the president declined to pursue that course,
perhaps in recognition of the fact that his administration had already been
found to have violated the 14th Amendment. During the pandemic, the Small
Business Administration cooked up a series of arbitrary racial categories that
allowed it to funnel taxpayer-backed Covid relief to favored minority groups.
The Sixth Circuit was aghast. “The government could grant priority
consideration to all business owners who were unable to obtain needed capital
or credit during the pandemic,” the majority’s decision read. The Biden
administration “could have used any number of alternative, nondiscriminatory
policies,” it continued. “Yet, it failed to do so.”
Democrats’ apprehension over Donald Trump’s “lawless”
border- and immigration-enforcement methods is particularly rich given their
party’s recent history of similar lawlessness. According to Section 212(d)(5)
of the Immigration and Nationality Act, for example, the president is precluded
from granting parole to inadmissible aliens on anything other than a
case-by-case basis, save in extreme circumstances (the existence of which
Congress must typically affirm). Biden sidestepped this check on his authority
last summer when he announced “measures to clarify and speed up work visas to
help people,” including Dreamers, undocumented people brought to the U.S. as
minors. The president then extended Temporary Protected Status to well over
half a million illegal aliens. Just four months later, Biden’s “parole in
place” policy was struck down by Judge J. Campbell Barker’s determination that
the program “stretches legal interpretation past its breaking point.”
When the Biden administration wasn’t ignoring the law to
engineer a spike in illegal immigration, it was revising statute on the fly.
“Being in the country illegally, on its own, [is] not enough reason for
[Immigration and Customs Enforcement] to arrest them,” former Homeland Security
chief Alejandro Mayorkas insisted early in the administration. While
questioning the law based on the outcomes it produces and advocating revisions
to it is within an administration’s remit, rewriting the law is not.
Neither law nor prudence, nor even decency, imposed
caution on the last administration when it declared its support for menacing
demonstrations outside Supreme Court justices’ homes. “I know that there’s an
outrage right now, I guess, about protests that have been peaceful to date,”
former White House Press Secretary Jen Psaki mused following the Court’s 2022
decision in Dobbs, “and we certainly do continue to encourage that,
outside judges’ homes, and that’s the president’s position.” As Andrew McCarthy
observed at the time, the president’s position amounted to advocating
lawlessness. “It is a criminal offense to picket or parade near a residence of
a federal judge for the purpose of influencing the outcome of a judicial
proceeding,” he wrote. “When a statutory crime does not necessarily involve
forcible conduct, the fact that people commit it ‘peacefully’ is irrelevant.”
That disregard for the prospect and consequences of
political violence typified the Democratic Party’s response to the chaos that
erupted on America’s college campuses following the October 7 massacre that
Hamas perpetrated in Israel. On the first full day of Donald Trump’s second
term, Democratic Senator John Fetterman joined his Republican colleague Bill
Cassidy in sponsoring a bill to compel the White House to enforce the Title VI
civil rights protections that were being flagrantly disregarded on America’s
campuses. “This bill is about protecting young people facing discrimination on
college campuses and making sure they know their rights,” Fetterman’s statement
read. Implied in that observation is the conclusion that the Biden
administration had ignored the ample violations of students’ civil rights over
the preceding 14 months.
Even when it comes to the use or misuse of the pardon
power — something that is difficult to deem lawless insofar as that power is
constitutional and nonjusticiable — Trump can thank Joe Biden for muddying the
waters. Like Trump, Biden abused the pardon power by applying it not to
individuals but to entire groups — categories that captured those who might
have deserved presidential clemency as well as those who most certainly did
not.
Biden commuted the sentence of a judge who had been
convicted of over-penalizing juveniles only so that they could be sent to
for-profit detention centers. (Those detention centers, in turn, provided that
judge with a kickback for every child convict.) He commuted the sentence of a
former Democratic elected official in Ohio who had doled out county contracts
in exchange for cash, vacations, gifts, and favors. A onetime Illinois
comptroller responsible for embezzling nearly $54 million received clemency, as
did well-connected fraudsters in Chicago and Las Vegas. Their conspicuous
connection to Democratic politics lends a sordid character to Biden’s
commutations.
Biden pardoned his family members for crimes of which
they were convicted and for crimes with which they had not yet even been
charged. He preemptively pardoned prominent Americans of both parties merely
because they had been singled out for criticism by Donald Trump, setting a new
and likely durable precedent. He even robbed Democrats of the opportunity to
argue against Trump’s pardons of violent as well as nonviolent offenders by
granting clemency to Ferrone Claiborne and Terence Richardson, two men who have
confessed to their involvement in the 1998 killing of a Virginia police
officer. There was one Pandora’s box that Joe Biden mercifully declined to
open: he decided not to try to pardon himself. But then, he didn’t have to. His
government declined to prosecute him for his alleged retention of classified
documents, though it did charge Donald Trump with that very offense.
On occasion, the Democrats who raise the alarm over
Trump’s contempt for the law do so with good reason and ample evidence. Trump
and his administration are signing executive orders to intimidate and
harass lawyers whose only offense has been to work with the opposition party.
They have subordinated justice to handing out political favors to
allegedly corrupt allies — actions that have compelled longtime U.S. attorneys
to resign. They are attempting to sidestep the courts when seeking to
deport migrants, usurping wartime powers to do so. The president is soliciting
seven-figure donations from financial interests in exchange for face time,
holding gala dinners for investors in his personal meme coin. Democrats,
however, have sacrificed their ability to complain credibly about episodes like
these.
In addition, the party out of power has done its fair
share to delegitimize the only institution that still serves as a vigorous
check on the presidency: the courts.
The Trump White House is spoiling for a fight with the
judiciary — so much so that it went to war over a ruling that called for the
repatriation of a deportee who the Justice Department admitted was expelled by
mistake. If that mulish sloppiness is any indication, the administration
will likely lose its share of court cases. And when it loses, the
administration will argue, as Vice President JD Vance has claimed, that “judges
aren’t allowed to control the executive’s legitimate power.”
We are therefore soon likely to see the right questioning
the judiciary’s legitimacy, to which Democrats are sure to object. Yet, who but
the most opportunistic Democratic partisans would believe them? The MAGA right
would only be appropriating an argument the Democratic Party pioneered.
That is what’s so troubling about this trend: it is
compounding. One administration’s lawlessness radicalizes its opponents, who
resolve to mete out what was inflicted on them when they come to power. Civic
propriety, judiciousness, and restraint come to be regarded as the foibles of
collaborators and cowards. Lawlessness does not give way to virtue. It begets
more, worse lawlessness.
Once, we could rely on the logic of negative partisanship
in a closely divided country to impose some prudence on would-be scofflaws in
the executive. But Democrats spent the last four years shedding any pretense of
reverence for legal standards. The president and his allies don’t have to take
Democrats’ concerns for the integrity of the rule of law seriously because,
when it mattered, Democrats themselves didn’t.
There are always trade-offs. Satisfying a base impulse to
reward solicitous allies today, at the expense of civic protocol, incurs costs.
And those who would steamroll their opponents and break through the civic
guardrails today should expect to be on the receiving end of that sort of blunt
force soon enough. Presidential lawlessness is a one-way ratchet.
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