Following the rule of law

This board normally does not focus its attention on national issues, but the makeup of the board is lawyers and retired judges, and each of us, when we were sworn to the bar or the bench, took an oath to follow the law and support the Constitution. When an administration, according to numerous U. S. District Courts, is acting in a way that is unconstitutional we feel strongly that our collective voice must align with others and be heard.

We join with others, including the president of the American Bar Association, speaking for that association, and five former secretaries of the treasury who served under Democratic presidents, who have called for anticipated changes under a new administration in Washington to occur following the rule of law.

Targets of their criticism are what the American Bar Association sees as “wide-scale affronts to the rule of law itself, such as attacks on constitutionally protected birthright citizenship, the dismantling of USAID and the attempts to criminalize those who support lawful programs to eliminate bias and enhance diversity. ”

This board, as does the American Bar Association, supports the rule of law, regardless of which administration is in power. Refusing to spend money that has been appropriated by Congress, for example, is a violation of the rule of law, and as the American Bar Association has written, “suggests that the executive branch can overrule the other two branches of government . … This is not the way democracy works. ”

The former treasury secretaries wrote recently that the executive branch must respect that Congress controls the money. ”The legislative branch,” they remind us, “has the sole authority to pass laws that determine where and how federal dollars should be spent.”

They admonish those who would do otherwise that the Treasury Department lacks the authority to decide what federal funds appropriated by Congress it will spend and what funds it will not spend. If the administration objects to how Congress has voted to appropriate and pay funds, it has every right to ask Congress to roll back those already appropriated funds as other administrations have done in the past. But the executive branch does not have the authority to interfere with the actions taken by Congress and the laws passed thereby.

So far, each of the courts before which these issues have been brought, has agreed with the positions taken by the American Bar Association and by the former treasury secretaries. Like the American Bar Association, this board does not oppose any administration, but like the American Bar Association this board is committed to support the rule of law, as should all lawyers and judges.

If change is to come, it must be properly made in accordance with the process therefore written into the Constitution.

Editorial Advisory Board members Arthur F. Fergenson and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Eric Easton

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Nilson

Catherine Curran O’Malley

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.