The Pirate Code made famous in the series of “Pirates of the Caribbean” movies established rules to avoid the heightened opportunity for chaos among 18th century pirates. In some respects, all laws are established by societies to bring certainty in an uncertain world.
The United States is pre-eminent in our adherence to the rule of law, where everyone is given equal protection under law and no one is above the law. This is the basis for our governing principles and is fundamental to our way of life.
Consider the benefits the American system of rule of law provides in international trade: Our system promotes stability and predictability rather than uncertainty and chaos. Yet the concept is sometimes taken for granted to the point that threats to the rule of law within the political process are not understood or taken seriously.
The dysfunction within Congress and the executive branch that has plagued Washington, D.C., has many people concerned for different reasons.
The hyper-partisanship that affects the debate and the inability of Congress to reach agreement has sometimes led to a near-breakdown of the legislative process. Meanwhile, the 50 states, each a sovereign entity in our system of federalism, have struggled without a federal legislative branch functioning properly.
The absence of the federal government’s properly performing its duty regrettably has sometimes put states in the unfortunate position of trying to assume the federal government’s role.
One example is the federal government’s inability to enact and enforce consistent immigration policy. In the states’ defense, state governments are closer to the people and are under tremendous pressure from their citizens to act. But states’ being forced to act outside the scope of their authority would be inconsistent with the rule of law.
More visible are scenarios where the federal executive branch has overstepped the bounds Congress authorized.
For all the controversy over the Affordable Care Act, there has been little attention paid to the threat to the rule of law caused by executive branch overreach. By various accounts, the ACA has been changed or delayed 19 times since its passage—14 times through laws Congress passed, which is the proper way, but five times by the executive branch’s acting administratively.
Also, the administration has waived the law’s requirements for companies more than 1,200 times.
The Internal Revenue Service has threatened to impose tax penalties of the employer mandate against state and local governments; my office contends it has exceeded its authority under the ACA and has filed a legal challenge to their actions.
For all the genius that went into the structure of our U.S. Constitution, the framers did not envision a time where the federal legislative branch itself might become dysfunctional. Maybe they assumed citizens would ensure elected officials would self-correct.
In our system, authority not specifically delegated to the federal government or the states is reserved ultimately to the people, so it is all the more important that the people recognize the threat to the rule of law that would weaken the certainty and stability that have characterized our constitutional system for 227 years.
The fictional pirates on film could disregard or discard their own legal code when it became inconvenient to them: “Hang the code, and hang the rules, they’re more like guidelines anyway!” is the famous movie line.
As a constitutionally based republic where states share sovereignty with the federal government, we must never become cavalier about the rule of law or regard laws as mere guidelines.•
Zoeller is state attorney general and represents the state of Indiana in a legal challenge against the IRS. Send comments on this column to [email protected].