The Corner

Law & the Courts

New York Magazine Writer Baffled by Support for the Rule of Law

Detail of King George III in Coronation Robes, c. 1765, by Allan Ramsay. (Public domain/via Wikimedia)

At New York magazine, Ed Kilgore has penned a confession: He has no principles, and he doesn’t understand people who do.

Kilgore is absolutely baffled that, in his words, “conservatives are freaking out about the eviction moratorium,” and he can’t comprehend why I, for example, would think that Joe Biden announcing on live television that he is going to take an action that he knows is illegal “calls into question Biden’s oath of office.”

Kilgore writes:

Charles C. Cooke greeted Biden’s presser by claiming the president had violated his oath of office. Cooke subsequently called, and I am not making this up, for civil disobedience against the moratorium. Not to be outdone, David Harsanyi called the moratorium extension an “unprecedented attack on the Constitution” and Phillip Klein urged Republicans to “shut down the Senate” to protest the outrage. Ryan Mills chipped in with a human-interest story about “small landlords” being unable to make ends meet by evicting impecunious tenants and getting some new ones into their properties. And Kevin Williamson rounded things out with a broader piece on abuse of “emergency” powers by presidents past and present. Several other cries of anguish and fist-shaking vows of defiance may have appeared at NR as I write this piece; I’ve hit the publication’s paywall from every available direction.

Other than the hysterical use of “civil disobedience” — in fact, I suggested that the courts, the states, and the American people should follow the law as determined by the Sixth Circuit and the Supreme Court, rather than the law as illegitimately invented by the CDC — this is a correct summary of NR’s position. And Kilgore just cannot grasp why. At one point, he shares a reader’s suggestion that it is because there are “lots of landlords among NR subscribers/contributors.” At another, he wonders whether opposition to the policy itself is “a matter of deep conviction at NR,” but proposes that if it is, it’s a mistake, given that it might contribute to the Republican Party’s “optics problem.” At no point does it seem to cross his mind that we believe that what Joe Biden has done is deeply destructive to our constitutional order, and that it is our obligation to say it. That tells us a lot about him, and nothing about us.

At the time the moratorium was passed, David Harsanyi complained that Trump was “again dropping Obama-esque decrees,” while Robert VerBruggen wrote that the “ban oversteps the bounds of the law” and that “the courts should not let this stand.” In May, Andrew McCarthy noted that the measure was losing badly in those courts, and proposed that “Americans should be disturbed, though not surprised” by the new government’s position. How did Kilgore think NR would react when, after the order had been in place for nearly a year, the Biden administration started telling reporters not only that it intended to renew it using a legal theory that it knew was unconstitutional, but that it intended to do so in the explicit hope that the lawsuits would take a while to sort out.

When Donald Trump stole funds to pay for his border wall, despite a lack of congressional authorization, I slammed him for “making an end run around the legislature,” for engaging in “Jesuitical parsing,” and for having decided to “declare himself a monarch.” Lamenting that nobody seemed to care, I wrote:

In 1803, Thomas Jefferson warned that Americans’ “peculiar security is in the possession of a written constitution; let us not make it a blank paper by construction.” We must follow this advice with our statutes, too, for if we do not we will be complicit in the destruction of the greatest innovation in the history of government. To permit presidents to circumvent quotidian policy disputes by appealing to a phantom Too Important Clause is to tear up James Madison’s Constitution and to sanction an alternative settlement within which any sufficiently frustrated executive is able to delve deep into the statutory well and find a watery justification to get his way. “Emergency,” “crisis,” “prosecutorial discretion” — these words all mean something concrete. If, when things get tough for the president he can always find an Enabling Act somewhere in the forest, then we do not have a system of government at all. We have a dictatorship. How ironic it would be if historians looked back and concluded that the Anglo-American preference for parliament was defeated in the end not by Charles I or James II; not by George III or the Declaratory Acts; and not by the panoply of evil, masquerading isms that stained the last century in blood; but by simple partisanship, which turned us first into sophists, and then, bit by bit, into vandals.

For about a month, I took this argument onto every radio show, TV show, and podcast I could get myself on. I tweeted until I bored my followers. I even made a video. To borrow Kilgore’s term, I “freaked out.”

Why? Not because I cared a great deal about the wall — I didn’t. And no, not because NR has lots of pro-wall readers, although I must assume it does. But because I am deeply invested in the maintenance of our constitutional order to which, as an immigrant, I took an oath. This isn’t partisan, and it’s not a matter of policy preference, either. I had the same reaction to Obama’s DACA order, to whose aims I was sympathetic. I had the same reaction to Trump’s wall funding, to whose aims I was indifferent. And I will have the same reaction when, a few years hence, the next Republican president gets frustrated with Congress and decides to break the law in pursuit of something I’ll presumably like. We either have a Constitution or we don’t. I must now presume that the likes of Ed Kilgore have landed firmly on the side of don’t — at least, not when a president he favors happens to be sitting in the White House.


The Latest

Welcome Back, ABBA

Welcome Back, ABBA

The band has done itself credit simply by not embarrassing itself, delivering a listenable deck of plush, lacy ballads.