This article is the second in a series covering attacks on the rule of law. The rule of law is a political philosophy premised on the promise that all citizens, leaders, and institutions are accountable to the same laws, guaranteed through processes, practices, and norms that work together to support the equality of all citizens before the law. This series argues that regressive governance is increasing around the world, including in putatively democratic countries, quashing human rights through strategic actions designed to undermine the rule of law.
A simple definition of abuse of power is the misuse of a position of authority to take advantage of another person or organization. When the abuser is a government actor or system, it denotes a power dynamic in which a government official or agency uses their authority for personal gain — such as by undermining the power of those in opposition — expecting that the rule of law will not apply to them because they will be able to control or manipulate the legal system.
Indicators of rising fascism are a useful metric for considering government abuses of power, as fascism is associated with government oppression of opposition. These indicators include nationalism, disdain for human rights, othering and scapegoating, racism, sexism, captured media, corruption, and election fraud. Regressive leaders have often utilized the foregoing as tools of oppression to undermine the rule of law and amass their own power. The British Parliament invented impeachment in 1376 as a legislative check against royal abuses of power, and the drafters of the US Constitution were clear that when the Constitution no longer served the people, they should be able to change it. In a healthy democracy, checks on abuses of power are found within the rule of law. In countries with an unstable rule of law, those in power have a tremendous capacity to strengthen their position and to entrench their ability to further abuse their power, sometimes with impunity.
For the past seven years, various branches of the US government have been acting outside the constraints of the rule of law, in many instances with impunity. The fewer the legal safeguards, the higher the likelihood of abuse of power and impunity. In the United States, the fewest legal constraints are imposed on legislators, who write and enforce their own governing rules, in branches of the Department of Homeland Security which have been granted more and sometimes extraconstitutional authority, and on law enforcement at all levels who have gained considerable immunity. Allowing government actors to amass this much power, without adequate legal checks, comes with a tremendous cost, one born predominantly by already marginalized people, and by human and civil rights advocates speaking out in support of them and against the abuse of power.
Exposing the Lack of Constraints
The most foundational legal cases in US law saw the judiciary responding to the potential for abuse of power by enshrining in law the separation of powers. These cases established a sense of reliance by detailing the checks and balances between political and legal systems: Presidents cannot make unsubstantiated national security assertions to justify expanding their own power, encroach on individual rights, or trespass on Congressional territory, for example; and the people can depend upon the judicial branch to enforce these constraints. But these legal challenges rely on the judiciary to be fair, impartial, unbiased, and just in checking that abuse of power. The US is suffering a crisis of confidence in the judiciary with regard to its impartiality and sense of justice, particularly as applied to matters of human and civil rights.
Further, much of US governance has been carried out with a mere gloss of accountability, predicated on self-imposed ethical norms like fairness, impartiality, and avoiding the hypocritical application of the rules. Recent actions by every branch of government, at both federal and state levels, have exposed the truth — those norms are largely decimated, if they ever existed. For example, the Senate can and did refuse for a full year to give the advice and consent to see a crucial Obama Supreme Court nomination move forward, even while pushing through another in the lame duck weeks before Trump left office. The Tennessee legislature can expel two legislators, both young and Black, allegedly for speaking out of turn, but fail to expel their white colleague. State actors in Texas and Florida can threaten elected officials who oppose laws they are pushing to pass and punish journalists who report it.
Ethical norms by which we believed our elected officials operated have not only been exposed as non-existent, but their absence exploited. For example, candidate Trump repeatedly promised to impose a Muslim ban, stereotyping practitioners of one religion as a national security threat, and then imposed such a ban within his first ten days in office. When the ban was challenged, the Court refused to consider those promises as evidence that the order was in fact intended as a ban on Muslims. Once in office, Trump regularly disparaged marginalized groups, fomented discord, made barely veiled threats, and encouraged vigilantism. His political style centered on ignoring ethical norms, public ridicule and discrimination, abuse of power, and encouraging vigilantism to foster these agendas. Other government officials in the US and internationally observed the impunity and lack of negative consequences and acted accordingly.
Rules like those under which the Supreme Court, the Executive, Congress, and state legislatures operate have been exposed as not only flimsy and honor codes not respected; they also often racist, sexist, antiquated, and selectively applied. Like Pandora’s box, once bad actions are unleashed with few negative consequences, others take note. Furthermore, the people hired under Trump, including thousands of judges and law enforcement, remain in office. In post-conflict countries, neoliberal organizations typically dictate that countries wishing to join international alliances must vet their corrupt state actors through a process called lustration. This process reveals which employees paid by the state are too corrupt, too loyal to prior rights-violating regimes, or too biased to remain in office. In the United States, we have no such mechanism.
Attacks on Human Rights Defenders
The most pernicious abuses of power playing out in the US and in several countries around the world involve criminalizing human rights defenders. These laws attempt to reach human rights lawyers, advocates, and those who inform vulnerable populations about the law. This series will address government animosity towards marginalized populations in separate articles. The attacks on their advocates and supporters, and on those who use the legal system to protest abuse of power have their own deeply regressive purpose, designed to decimate particular rule of law norms, and are thus addressed separately.
No one is more dangerous to regressive rulers than human rights advocates and those who share knowledge (teachers) and information (journalists) with others. In the past seven years, these groups have been increasingly harassed, and their work criminalized. It should come as no surprise that the focus of regressive governments has been those who focus on immigration, race, gender, marginalized people, and regressive governance. In 2017, immigrant rights advocates in the US began reporting regularly being stopped, held, and threatened by border agents at ports of entry and in transit to the US. This harassment was reported to the UN and verified by six UN Special Rapporteurs who requested, but never received, a response from the US government. Immigration lawyers were threatened with malicious prosecution, including those who merely reported updates on procedural changes that were quietly implemented during the Trump administration. For example, DHS agents issued a fake subpoena to an immigration lawyer, citing inapplicable law as their authority to arrest him. His countersuit took him and those supporting him away from assisting immigrants.
Interpol flags and federal human trafficking laws have also been used to threaten and harass immigrant advocates, most of whom are women. US Customs and Border Patrol operate under a “constitution free zone” premise, endorsed by the Supreme Court, which they believe grants them the discretion not only to profile people, based on race, nationality, and gender, but to broadly construe “national security” to justify everything from cavity searches of women, to killing individuals when shooting across the border, confiscating electronic devices and copying the information they contain. Despite their regular extra-constitutional activity, CBP was granted more discretion, even across US borders, and given a larger budget, with less oversight.
Harassment of advocates serves to chill advocacy, deterring them from engaging in the amount of work necessary to represent the vastly underrepresented immigrant population. This yields a significantly lower likelihood of migrants reaching or achieving status in the US, which pleases nativists. It also chills the impact of litigation undertaken by the same individuals who would be in a position to challenge regressive laws and policies in court. In short, the legal challenges to regressive governance diminish, drastically, as human rights advocates burn out from years of harassment. That this is the intent is evidenced by public statements like those made by then-Attorney General Sessions who used the occasion of a national speech to call private immigration attorneys “dirty” and unethical.
A case to watch is US v Hansen, which immigrant rights advocates fear will open the door further to the prosecution of immigration lawyers for merely doing their jobs. This law allows prosecution of those “encouraging” undocumented persons to remain in the US. The problem is that Congress has created multiple pathways for the undocumented to not only lawfully remain in the US but to ultimately become citizens. Lawyers failing to inform their clients of these legal pathways would be committing malpractice, yet now they could also be prosecuted for doing their job. The double bind is intentional.
The US is not alone in placing migrant advocates in a double bind. Conservative leaders in Hungary criminalized providing assistance to asylum seekers. Conservative leaders in Italy and Greece have prosecuted immigrant rights advocates, even those honoring their own professional legal obligations, like ship captains who are required to respond to ships in distress. The US has long criticized criminalizing and harassing human rights defenders, even calling this action a threat to democracy, yet is hypocritically doing the same.
Prior Restraint and Civil Society
The concept of prior restraint is deeply significant in US law and was abhorrent to the drafters of the US constitution who understood that democracy depends on an informed and educated public. In the past hundred years, the US has increasingly relied on civil society to carry out work the government would undertake before neoliberals convinced us to privatize and defund virtually all public assistance, often castigating it as “socialist” and not aligned with “free market values”. When regressive governments make it clear that human rights advocacy comes at a possible cost of prosecution, civil society and pro bono advocates engage in less frequent and more cautious advocacy. These same individuals are among those with the skill and fortitude to bring legal challenges against regressive governance, so when regressive governments succeed in chilling their human rights advocacy, the only remaining constraints on abuse of power cease to exist.
Regressive governments are attempting to chill human rights advocacy at an accelerated rate through threats of prosecution. The UN Special Rapporteur on the situation of human rights defenders has confirmed that migrant rights defenders are regularly targeted for reprisal, and has reported that those defending LGBTQI rights have increasingly been targeted for reprisal worldwide. In the US, states have criminalized assisting transgender minors, assisting or obtaining an abortion, and made teaching about racism, discrimination, and the existence of LGBTQI people a fireable offense. Meanwhile, conservative state legislators and executives have censured or removed from office other elected officials who object to regressive political machinations.
Protest is one of the few ways in which those who are oppressed can take back power from their oppressors. Increasingly, law enforcement, border patrol and morality policing agencies around the world are using surveillance equipment to police their opposition. After facing worldwide condemnation for arresting women violating morality codes, Iran shifted to using surveillance cameras to police dress, dissent, and demeanor. China has been using phones to track protestors. Almost every government in the world engaging in regressive politics, repression of human rights, and undermining the rule of law has been credibly linked to the use of new technologies to surveil their opposition.
The tools of regressive governance are pernicious and incredibly effective at chilling human rights advocacy by increasing fear and uncertainty amongst those who would fight for human and civil rights. The rights to express grievances, to call out corruption and discrimination, and to fight government abuse of power, are enshrined in the US Constitution and international law. The right of the people to vote for their representatives and change their government when it represses them is a defining feature of democracy. Punishing people who fight for those rights is one of the most insidious and pervasive tools utilized by regressive governments to undermine the rule of law. Failing to attend to these corrupted systems, marinating in abuse of power, corruption and self-dealing, bias, racism, nativism, and patriarchal values is democracy destroying.
Dina Francesca Haynes is Professor of Law at New England Law | Boston, where she teaches immigration, refugee and asylum law, human trafficking and constitutional law. She has also taught at Georgetown University Law Center and American University’s Washington College of Law. She has worked in a multitude of countries for the UN and other international organizations.
As noted above, this is the second in a series of articles entitled Rule of Law Chronicles. The first article, Rule of Law Chronicles: America’s Shadow Theocrats, can be found here.