The Discriminatory Executive & the Rule of Law

Abstract

Today, the executive enjoys unprecedented power, particularly in the area of national security. By and large, this authority is not meaningfully restrained by Congress or the courts. However, some scholars argue that the presidency is still kept in check by the rule of law and politics. According to this view, substantive and procedural laws and internal executive branch rules combine with political efforts by the public, like voting, to hold the President accountable. This Article challenges this view. It argues that the rule of law and politics do not always work together to restrain the executive. Instead, law can sometimes undermine political efforts to check the presidency, particularly where minority rights or interests are concerned. Focusing on the national security domain, this Article demonstrates how some laws and programs that are consistent with the rule of law frustrate executive accountability. These initiatives give the President far-reaching powers, threaten civil liberties, and disproportionately impact communities of color. While this is precisely where political accountability is most needed, it often fails to materialize. As this Article explains, the rule of law’s influence over social norms and behaviors helps explain this result. Facially neutral national security programs that disproportionately affect a small, disfavored group of Americans—in this case, Arabs and Muslims—legitimize and further their marginalization. This legalized discrimination undermines the solidarity—or “social cohesion”—between groups necessary for political accountability. This contrasts with other legalistic national security initiatives that also involve broad executive powers and threaten civil liberties but have generated efforts at political accountability. This Article compares various national security programs to understand how the rule of law and politics can better combine to check presidential actions that negatively affects minorities. In adopting this comparative approach, this Article unpacks the complex relationship between the rule of law, politics, and executive power in the national security arena. Based on the resulting insights, it presents preliminary solutions to the rule of law’s failure to further political accountability for communities of color in some cases.