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Democracy now leans on the expertise of lawyers and rule of law

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One year out from the U.S. Presidential election, the debate continues about whether Russian interference or Democratic National Committee infighting is primarily responsible for the  outcome.

With the recent escalated barrage of directives by  President Donald Trump through Twitter to his 42 million followers urging investigations by the FBI and the Department of Justice, informed legal experts from three distinct groups are needed to unravel the confusion.  

{mosads}As a former practicing lawyer, now a professor of legal analysis, I appreciate they are working actively to uphold our democracy as it strains under pressure.

On the front lines are public interest and volunteer lawyers protect citizens from the deleterious effects of ill-advised and poorly constructed executive orders. These attorneys have increased their already impressive efforts to provide representation for those who might otherwise not have had access. 

Lawyers swarmed airports from San Francisco to Chicago to Boston and beyond after the first implementation of the travel ban following the January inauguration. In that initial action, and in subsequent ban attempts, many of the attorneys were working without a connection to any of the organizations initially mobilizing to help travelers.

The ACLU has filed several recent lawsuits in its efforts to fight these executive orders, such as the Darweesh v. Trump case involving the travel ban and the Stone v. Trump case involving the service ban for transgender members of the military.

The nonprofit group Lawyers for Good Government started as a Facebook group during the election and now has over 120,000 members. The group’s initial areas of emphasis are voting rights, climate change, and Deferred Action for Childhood Arrivals (DACA).

DACA is about to come to an end, sending hundreds of thousands of children brought to the United States by their parents back to countries they have no memory of leaving. Congress has done nothing to prevent that from happening.

A second line of defense is the judiciary working its hardest to address the many complex legal questions raised by these hastily written executive orders. Not even six months passed between the filing of the first travel ban cases to the Supreme Court’s initial ruling in Trump v. International Refugee Assistance Project.

It only took three months for D.C. Circuit Court Judge Colleen Kollar-Kotelly to rule that the executive order prohibiting transgender people from serving in the military is likely unconstitutional, causing the policy to revert back to where it was before the president signed the order. 

In contrast, the “Don’t Ask, Don’t Tell” policy was implemented on February 28, 1994, and despite years of litigation and attempted repeal, the policy did not end until September 20, 2011.

Finally, law professors are moving beyond the classroom and the courtroom to educate the public about how best to defend democracy. In a world where constitutional questions are now part of our daily conversation, it’s crucial that law professors help laypeople understand these complex issues.

Professors contributing to The Volokh Conspiracy, a blog now hosted by The Washington Post, take on difficult legal topics daily, as do the bloggers on the Dorf on Law site. Legal scholars have grown increasingly active on Twitter, a forum not always known for nuance, where a professor like Harvard Law School’s Lawrence Lessig, founder of The Creative Commons, has more than 370,000 followers.
Certainly, not all lawyers in this country disagree with the White House administration’s policies, or even its strategies for implementing them, and not everyone is convinced lawyers are the solution to our problems.

But most agree on the importance of the institution of law itself. Judges like Judge Jay Bybee on the Ninth Circuit, for example, who are not yet convinced that policies such as the travel ban are unconstitutional, still use their judicial opinions to educate the public about the proper role of the court system.

What all these lawyers share is a deep commitment to the rule of law and the goal of ensuring that the government in particular follows the appropriate processes when changing and implementing the law. 

These shared values are what will protect us from the kinds of inappropriate government actions that plague our system right now, to the extent it’s possible to do so. As a lawyer, professor and citizen, that notion gives me solace.

Michelle Falkoff is the Director of Communication and Legal Reasoning at Northwestern Pritzker School of Law, where she is a Public Voices Fellow. She is the author of the young adult novels “Playlist for the Dead” and “Pushing Perfect.”

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