Law Without Future: Anti-Constitutional Politics and the American Right - Hardcover

Preface
The Pardon of the Sheriff

This is not a book about Donald Trump or the Trump presidency, although it is a book about the disintegration of constitutional norms and commitments on the American Right. Nevertheless, I want to begin with an incident from the early days of the Trump presidency to highlight the broad political condition the book explores: the paradoxical erosion of constitutional grounds via constitutional action, the discursive collapse of the rule of law with "the Constitution," and the uncritical embrace and celebration of the Constitution/rule of law by liberals with a simultaneous turn against the tumultuousness of politics (a turn sometimes explicit, sometimes implicit). In some sense, we begin with Trump to think past and move beyond him to properly think the present.

In the whirlwind of President Trump's first years in office, the administration's approach to the law has flickered between treating it as merely advisory, narrowly instrumental, mercilessly enforceable, or utterly irrelevant (depending on the political context and population in question). Against this chaotic political backdrop, one action stands out as perhaps paradigmatic of the president's orientation toward constitutional government in general and the constitutional principle of equality more specifically: his theatrical pardon of Joe Arpaio, the sheriff from Arizona. To the extent that the pardon represents the particular occupant of the executive office, the sheriff represents the ethos and energy of the political movement that ushered him into power.

Joe Arpaio came to power in Maricopa County, Arizona, in 1992. "Sheriff Joe," as his admirers tend to call him, imposed a policing regime in his jurisdiction that trafficked in anti-immigrant politics, and he implemented a harsh order of racial profiling to further this anti-immigrant policy. As sheriff, his signature was cruelty and humiliation. Most notoriously, he housed prisoners in an outdoor cage under the blazing sun of the southwest desert where temperatures frequently soared into triple digits. Prisoners slept in old army tents and were compelled to watch the Food Channel while eating meals the prisoners described as "slop." When some nativist constituents asked why there were no concentration camps for the "illegals," the sheriff assured them that in fact there was a concentration camp in Maricopa County. Under the sheriff's watch, all Latinos (citizens or not) lived and labored under the suspicion of being "illegal," and all immigrants without legal documents became figured as public enemies and grave threats to the polity even in the absence of any actions that constituted violations of the state's criminal law.

After years of governing with near impunity, Latino victims of his rule successfully challenged him in federal court. In 2011, a district court judge issued a preliminary injunction against the sheriff and ordered a halt to racial profiling; subsequently in 2013, a district judge found the Maricopa County sheriff's office to have been engaged in practices that violated both the Fourth Amendment's prohibition against unreasonable search and seizure as well as the Fourteenth Amendment's guarantee of equal protection of the law. As a result, the court ordered a permanent cessation of the discriminatory policing practices. In response to the sheriff's refusals to yield to federal court orders, a federal judge found Joe Arpaio guilty of criminal contempt in 2017. Arpaio faced up to six months in jail for his crimes. However, this potential sentence was rendered null by President Trump's preemptive pardon issued in August 2017 prior to sentencing.

The ongoing violation of the constitutional rights of others, coupled with contempt for the courts that sought to defend those rights, earned the sheriff broad support and acclaim on the American Right. As the Wall Street Journal editorial board noted, "Sheriff Joe" stands as "a hero to many conservatives." By issuing a full and unconditional pardon weeks before Arpaio even faced a sentencing for his crime, President Trump recognized and affirmed the heroic status of the sheriff, whose heroism ultimately consisted of nothing more than his perpetual disregard for the constitutional principle of equality. The symbolic weight of the pardon is heightened by the fact that this was the first pardon of Trump's presidency. But this was not the first time American conservatism has found such behavior pardonable. Corey Robin, in his illuminating exploration of conservative thought, reminds us that during the period of massive resistance in the South to desegregation on the heels of the Supreme Court's decision in Brown v. Board of Education of Topeka, the editorial board of William F. Buckley's National Review penned editorials that inquired "whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically?" Reflecting upon their principles, the editors of the flagship journal of modern conservatism answered, "The sobering answer is Yes—the White community is so entitled because, for the time being, it is the advanced race."

In pardoning this assault on constitutional equality, Trump also bypassed the normal procedures established by the Department of Justice to field and process requests for presidential pardons. Of course, these procedures are discretionary and not stipulated anywhere in the Constitution. Article II's language is sparse, and the power is mostly unencumbered: "The President shall . . . have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." The pardon power thus excludes violations of state laws from its reach as well as cases of impeachment. Unlike most of the other enumerated powers in Article II, it requires no action from either house of Congress to go into effect and is immune from being overturned by any action of Congress. Although the Supreme Court has emphasized that this "power of the President is not subject to legislative control," it remains an enumerated constitutional power within a broader constitutional structure rather than a power exterior or above or prior to the Constitution.

Presidents issue pardons for a variety of reasons. President Abraham Lincoln offered pardons to rebels during the Civil War on the condition that they would swear oaths to the Union. President Andrew Johnson issued pardons to numerous Southerners after the Civil War concluded; President Jimmy Carter provided mass pardons to those who resisted the draft to fight in Vietnam. In these instances, the pardon power was deployed to repair divisions in the polity. It is, in this way, a tool of governance. Presidents have also granted pardons to relieve unduly harsh sentences or to demonstrate human sympathy for an individual and the particular circumstances of their case. The Supreme Court, in the case of Ex Parte Garland, explained that the "benign prerogative of mercy" rests at the heart of the pardon power. In practice, of course, the power to pardon is not immune to petty corruption, and the distribution of mercy can degenerate into something resembling the sale of indulgences. President Bill Clinton's pardon of the financier and party donor Marc Rich for tax fraud illustrates this most clearly.

Trump's pardon of Arpaio breaks with these various traditions. The pardon does not forgive a rebel; it instead affirms the revolt. Arpaio's transgression of the fundamental constitutional rights of others is rechristened as a political good by the pardon. The White House issued a statement in conjunction with the pardon. Nowhere in the statement does it mention either the violation of rights or the conviction for criminal contempt. Nowhere does it speak of either contrition or apology by the pardoned. Nowhere does it gesture to some larger sociopolitical good being measured against the crime and being vindicated by the pardon. Instead, the president represents Arpaio's tenure as sheriff as a "life's work of protecting the public from the scourges of crime and illegal immigration." As such, his decades of "admirable service" make him a "worthy candidate for a Presidential pardon."

It is enlightening to contrast this with perhaps the only other modern pardon that rivals it for raising such widespread constitutional controversy: the 1974 pardon of Richard Nixon by President Gerald Ford. Nixon committed crimes during his presidency that exposed him to criminal liability and prosecution after he resigned in disgrace. In the proclamation granting the pardon, President Ford noted the votes in the House Judiciary Committee recommending impeachment and also admitted candidly that Nixon's "acts or omissions" would likely lead to a "trial for offenses against the United States." By pardoning Nixon, Ford did not seek to celebrate the "acts or omissions" that set in motion the wheels of impeachment, the resignation, and the potentiality of a criminal trial. The president instead sought to calibrate the punishment with the crime and thus implicitly acknowledged wrongdoing. Ford argued that Nixon had "already paid the unprecedented penalty of relinquishing the highest elective office in the United States." In addition, Ford believed that the "tranquility to which this nation has been restored" by Nixon's resignation would be "irreparably lost" by the trial of Richard Nixon.

In contrast to the case of Ford/Nixon, in the case of Trump/Arpaio, the crime itself not only disappeared from record but also was refashioned into a badge of honor or reimagined as service to the country well rendered. Lawyers challenging the constitutionality of the pardon zeroed in on this radical and unprecedented dimension of the case: "No President till now has proclaimed that a public official who violated the Constitution and flouted court orders was 'doing his job.'" Organs of the legal establishment and liberal opinion quickly condemned the pardon. The ACLU denounced Trump's action as a "presidential endorsement of racism." The president of the cautious and staid American Bar Association worried about an erosion of judicial power and prestige, castigating the president for exhibiting a "blatant disregard for the authority of the judiciary." Conservative opinion split: editors at the Wall Street Journal warned that "pardoning Mr. Arpaio sends a message that law enforcers can ignore court orders and get away with it," and the editors at the National Review criticized the pardon for endorsing "the sheriff's lawlessness." Nonetheless, the editors at the National Review were compelled to acknowledge that "Arpaio remains a hero to the populist Right."

One may succinctly state the thesis of these critiques as this: the "rule of law" has yielded to the "lawlessness" of the president and his sheriff. Yet this critique circles back into something of a paradox: the so-called lawless pardon emanated from an enumerated constitutional power. Thus, we confront a vexing anti-constitutional situation in which constitutional power undermines constitutional government. As the New York Times described it, the president "used his constitutional power to block a federal judge's effort to enforce the Constitution . . . [this] excused the lawlessness of an official who had sworn to defend the constitutional structure." Some of those lamenting this perfectly legal lawlessness (as they tended to phrase it) interpreted it as a "depressing sign of our hyper-politicized times." Politics allegedly cracked the rule of law open, and a crisis of lawlessness emerged from its splintered shell. A leading constitutional scholar sounded the alarm of constitutional crisis: "Trump has pulled the republic into uncharted waters. Our best guide home is the Constitution."

The book ahead charts the waters. But it maps the political present in the United States in a manner that displaces the centrality of the current presidential administration. For this movement toward anti-constitutionalism did not spring forth from the election of 2016; rather, that election and this current regime were born out of an anti-constitutional movement that was already under way. Trump and Arpaio did not pull the republic to some new place; they simply shined a light on our present location. And neither do the sheriff and the president represent some new moment of "hyper-politicized" times. Instead, they signal a time when a particular kind of politics is ascendant on the American Right, a politics ill-suited for and unmoored from constitutional governance.

Only political action can offer a different vision of the future, and the first effort of political resistance requires naming and claiming the future as a horizon of constitutional vision. It will require a political thinking long neglected in everyday political life and a constitutional reimagining long absent in the body politic—both by constitutional design, it should be noted. The disintegration of constitutional norms should thus emancipate us from longing only for a return "home" to "the Constitution." As Bonnie Honig has helpfully reminded us, there "are many varieties of constitutionalism, including popular constitutionalism, many of which were casualties of [the constitutional convention of 1787 in] Philadelphia." Rather than return "home" by way of Philadelphia, this book invites the reader to consider the possibility of setting sail for new shores.