Brian Z. Tamanaha (Washington University in St. Louis – School of Law) has posted Lessons Learned from the Trump Rule of Law Stress Test: Beware Bad Faith Actors on SSRN. Here is the abstract:
The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and using time to its advantage; discussed against the backdrop of a fourth point: 4) extreme pressure on the judiciary, including harsh criticisms, misleading or false statements, and defiance of judicial orders. This analysis reveals various ways in which a bad faith administration can exploit existing doctrines and a structural difference between the executive and courts to effectively undermine the rule of law.
Highly recommended.