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In our opinion: Recent tactics used to get around rule of law a long-term threat

Published: Sunday, July 28 2013 12:00 a.m. MDT

The U.S. Capitol Building is seen at twilight in Washington, D.C.

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The rule of law requires all parties to submit to a process, respecting outcomes with which they disagree and acknowledging that change can come only through an orderly set of actions. In the United States, those actions are established by state and federal constitutions and laws designed to preserve fairness through democratic representation, with built-in protections for the rights of minorities.

Lately, however, this process seems to be fraying at the edges. Last week, U.S. Attorney General Eric Holder announced the Justice Department will seek to get a federal district court in Texas to force the state to submit any changes it wants to make in election laws or methods to federal review. The move comes one month after the U.S. Supreme Court struck down the decades-old formula in the Voting Rights Act that required Texas and a few other states to submit such changes to Washington for approval.

The Obama administration dislikes Texas' law requiring voters to show an I.D. before casting a ballot. Several states have similar laws, but Texas is being held under a microscope. Holder is hoping to rely on a different section of the Voting Rights Act that allows Washington narrow authority, if a court agrees, to pre-clear any law that is judged as discriminatory against minority voters.

The move is a legal and technical end-run around the court's decision, as Texas Gov. Rick Perry put it. It's also an attempt to circumvent the will of the people in Texas, and it is bound to cost the taxpayers of that state, depending on how the federal court rules. Texas would likely mount a legal challenge to any new federal oversight of its voting laws.

This is just one recent example of one side or the other in a hotly disputed matter of public interest trying to circumvent or invalidate a process set forth in law.

Consider California's Proposition 8, which amended the state's constitution to define marriage as between a man and a woman. Voters approved the proposition, but the state's governor and attorney general both declined to defend that portion of the constitution because they disagreed with it. Both had taken oaths in which they swore to uphold the laws of the state. Their refusal to live up to those oaths has not been challenged, and ultimately the U.S. Supreme Court allowed a lower court decision invalidating Proposition 8 to stand because the Proposition 8 supporters who defended the case lacked standing. Only the people's attorney had the standing to defend the people in their right to amend the state constitution, and the people's attorney had abdicated that part of his duty.

This precedent apparently influenced the attorney general of Pennsylvania, who announced this month that she would not defend that state's ban on gay marriage. A few days later, Montgomery County's Register of Wills D. Bruce Hanes began issuing marriage licenses to gay couples, saying he had made his "own analysis of the law." It is not clear how he can claim such authority over a state law that clearly prohibits him from doing as he did.

Consider, as well, what sometimes happens within the vast bureaucracies of Washington, where rule-making and friendly court consent decrees can circumvent the will of the people. Environmentalists may sue the EPA or the Fish and Wildlife Service over matters about which both sides agree. They subsequently meet and agree on a "settlement" that a judge ratifies. Suddenly, new coal-fired power plants are banned or other rules put in place by decree without any input from Congress, the people's representatives. Such a process may soon threaten "fracking," the innovative drilling process that suddenly has the United States poised to become energy independent.

In another action that may be struck down by courts, President Obama made controversial appointments to the National Labor Relations Board using a provision allowing him to make appointments when the Senate is in recess. The trouble is, the Senate was not in recess and should have retained its power to advise and consent to such appointments. So far, three federal courts have ruled the appointments were improper.

In each of these cases, the issues themselves are not as important as the principles behind the rule of law. As the campaign manager for the Proposition 8 effort wrote recently, such circumventions destroy public confidence in the judicial system and in other democratic processes. People eventually become cynical and distrustful of government.

Once one side has established the precedent of using such methods with success, there is little to stop the other side from doing the same when the balance of power inevitably shifts. If attorneys general defend only the laws with which they personally agree, or if bureaucracies seek to make laws on their own, the republican form of government will have little meaning, and social unrest may lurk around the corner.

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