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Below the Law: Violating Customs

In November, right before the election, I wrote about how the rule of law depends on believing in the rule of law.  The belief in the rule of law can also be extended to belief in customs and practices.  I remember when I was a teenager and I first called into question the way people did things.  I was on a date and this guy tried to kiss me at the end of the night and I felt like he was just doing that because that was what you were supposed to do at the end of the date, and I did the back-off duck and didn’t let him kiss me.  I explained this to my dad by saying, I don’t like to do things just because people expect you to do them.  I believe my dad told me a little kissing never hurt anyone.  I may have explained herpes to him.  

My resistance to these expectations made me think about how and why they came to be.  I eventually realized that there’s a reason we have certain expectations for how people should act.  These practices, traditions, customs allow us to live in a stable world with expectations for how things are and will continue to be.  People tend to walk on the right side of the sidewalk.  If you walk on the left, people will be annoyed with you, but no one is likely to arrest you.  As a teenager I wanted never to do things because that was the custom, I wanted reasons.  And I wasn’t wrong to want reasons.  The practices, traditions and customs fill in the place in between our laws for how we are to act in the world.

Yesterday, the President fired the acting Attorney General Sally B. Yates after she released a memo saying the Department of Justice would not support the immigration ban.  He then appointed a new Director of U.S. Immigration and Customs Enforcement, demoting the acting director to deputy director.  A lot of people were concerned that this was a constitutional crisis.  I don’t think it was.  A constitutional crisis would be when two branches of government were at undecidable odds, as when the executive branch refuses to recognize decisions of the judicial branch.  If customs officials continue to enforce the ban once the courts have deemed it unconstitutional, and the President encourages that (a situation that a quick google finds referenced in right wing news sources but not in mainstream sources, so I’m not sure whether that happened), that’s a constitutional crisis.  But firing an acting head of a department is within the limits of the law.  Heads of Cabinet serve at the pleasure of the president.  If they boldly defy him, no one should be surprised when they get fired.

And yet.  The firing of heads of departments for dissent is not something that happens often.  It isn’t the common practice.  Presidents tend not to want to show how much dissent there is within their Administrations.  They tend to want to show a stable functioning government.  Sometimes Cabinet heads take their disputes public when they are failing in private conversations with the president.  They have to balance between a certain expectation that a president won’t want to fire them and the possibility that they could be fired.  Perhaps the President did not feel that concern because the acting director was an Obama appointee.  Still, it is not customary to fire people under these circumstances especially when the new Attorney General is expected to be confirmed soon.  Here’s what I’m saying, this was legal, it is not a constitutional crisis.  But it is not customary.  It’s a break from the traditions and customs that accompany setting up a new Administration.

Trump has been breaking from custom and common practices all through the transition, and even before.  He didn’t release his tax returns.  He didn’t put his business interests in a blind trust.  He put his personal advisor on the National Security Council.  These things aren’t against the law, but they are against custom.  We like to think of the basic requirement for sustained political community as the rule of law.  But this leads us to think that legality is enough. But legality is not sufficient for just and good rule.  Legality is not enough for justice since laws can be unjust on their face and they can be applied unjustly.  Not violating the law does not mean justice is achieved.  But also violating practices that are not themselves encoded in the law might mean justice is not achieved.

The customs aren’t laws, but we do have reasons for them.  There’s a reason that political advisors don’t serve on the National Security Council — security decisions should not hinge on what is good for the president’s politically.  Perhaps even more than law, the customs continue because we acknowledge that we follow the practices rather than do whatever we want.  Not recognizing the custom changes the custom.  I think the Senate Republicans started violating the customs and practices the day Obama got to office, by saying they wanted him to fail rather than uniting for the good of the country.  They violated customs and practices by not giving a hearing to Obama’s SCOTUS nominee.  They laid the groundwork that made Trump’s refusal to follow the customs possible.  They showed how fragile they were.

Just like the political contradictions are symptoms of other things, so ignoring the customs are signs of other things.  I think they are signs of unconcern with maintaining the established order and with the general thriving of the community and its institutions.  There are times when that can be a good thing.  The established order has not always served us well.  Perhaps it has rarely served us well.  And established order has often meant the thriving of some at the expense of almost everyone else.  My concern is not with custom for its own sake.  The lack of regard for the customs can come from unwillingness to do things just because that is expected, as when you find yourself at the end of a date not wanting to kiss or be kissed just because that’s what you’re supposed to do.  But the lack of regard for custom can signal a failure of curiosity or desire to understand how and why things are done.  It can signal a lack of felt pressure to appear in a certain way.  It can signal an unresponsiveness, or worse, a desire to violate custom for its own sake.  That’s more adolescent than not wanting to be kissed just because that’s what people think you’re supposed to do.

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