Colleen Murphy (University of Illinois at Urbana-Champaign) and Bill Watson (University of Illinois College of Law) have posted When Does the Government Follow the Law? on SSRN. Here is the abstract:
The rule of law in the United States and in countries around the world is currently under stress. But diagnosing that stress and charting possible paths forward is hampered by an inadequate understanding of what the rule of law is and why it matters. A core requirement of the rule of law is that the government must follow the law; or put in more technical terms, governmental action must be “congruent” with the law. This Article develops a theory of when governmental action is congruent, explains why such congruence is valuable, and illustrates how the second Trump administration is and is not undermining such congruence in the United States today.
The question of when governmental action is congruent is much more difficult than it may seem at first glance. Governmental actions are routinely challenged in court, and the government not infrequently loses. Yet most of these actions seem to pose little or no problem for the rule of law. Congruence is not simply a matter of winning or losing, even justifiably, in litigation. Rather, the Article proposes that governmental actions are congruent when they are based on conventionally reasonable interpretations of the law, and they are incongruent when they clearly violate the law by exceeding the boundaries of conventionally reasonable legal argumentation.
So defined, incongruent governmental actions impede the rule of law’s central benefits of facilitating agency and promoting reciprocity between the government and the governed. Incongruence makes it harder for those subject to the law make plans and to be secure from arbitrary interference. These benefits distinguish the rule of law from a competing mode of governance that Lon Fuller termed “managerial direction.” At present, the United States government is moving further from the rule of law and closer to a form of managerial direction. A clearer understanding of congruence allows us to see both that this move is taking place and what its costs are.
Highly Recommended!
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