Misrule of Law

Because if we are not a nation of laws, we are subject to the rule of men, which quickly devolves into mobs. The furor over Hughes v. Lee illustrates the chaos that could ensue.

Thanks to the Tennessee Star (here) and the Michael Patrick Leahy Show (here)!

I recently started to track the cases in which lower federal courts—usually Obama- or Biden-appointed judges in blue states—had enjoined President Trump’s policy agenda, but I gave up because there were so many. In just the past week or so, lower federal courts have opposed President Trump in the following cases: cutting off federal funding to Harvard University for tolerating antisemitism; deploying the National Guard and federal troops to Los Angeles to protect ICE agents from violent protesters; imposing reciprocal tariffs on America’s trading partners to ensure fair trade; withholding $16 billion in “Green New Deal” grants; reuniting unescorted migrant children with their parents in their native countries; and invoking the Alien Enemies Act to declare violent criminal gangs to be terrorist organizations whose members are subject to deportation. And many more.

The lower federal courts are in full revolt against President Trump, in effect trying to overrule the 2024 election and kneecap Trump 2.0. Indeed, lower federal court judges are conspiring behind the scenes (with the assistance of the Fake News media) to undermine SCOTUS and even to threaten the safety of President Trump and Senator Marsha Blackburn by releasing suspects who had been arrested and charged with making graphic violent threats against them.

What is going on? Sadly, our law schools, bar associations, and judiciary have become politicized to the degree that the law itself has lost its moral force; many lawyers and judges, in a profession that has become dominated by the left, simply seek to impose their personal predilections on society while pretending to follow the law. They are activists in black robes. Amoral actors in a nihilistic belief system in which power and winning are all that matter. Laws and procedural rules don’t matter.

This same trend is evident on the fringe right. Let me explain. I have written previously about the “nullification” movement, which would encourage state officials to defy federal laws they personally disagree with (like blue state mayors and governors are doing with illegal immigration). Fortunately, the misguided legislation proposed in TN to advance this dubious notion has never reached the floor of the General Assembly. It is a crackpot theory promoted by the fringe John Birch Society and some of its wild-eyed fellow travelers.

A more recent example is the hysteria unleashed by a pack of Tennessee legislators (including a candidate for governor and one running for Congress!) and their social media cheerleaders objecting to the decision by Attorney General Jonathan Skrmetti to appeal a poorly-reasoned Chancery Court decision from Gibson County that found a duly-enacted Tennessee statute to be “void, and of no effect,” in a facial challenge—which means that the court found that the law is so unsound that no conceivable application of it would be constitutional. (The court was incorrect.)

What was the case about that led Rep. Monty Fritts and 11 of his House colleagues to urge General Skrmetti to abdicate his responsibility to uphold Tennessee laws and instead to surrender to the will of a lower Chancery Court? And why were fringe commentators (including a repeat candidate for the state senate) claiming that seeking appellate review of the lower court ruling was “a new low even for the Lee administration,” and proof that Gov. Lee “he is an enemy to gun rights in Tennessee”?

The case, Hughes v. Lee, was a lawsuit filed in February 2023 by some gun rights organizations and individuals challenging two Tennessee statutes (39-17-1307(a) and 1311(a)) that make it a misdemeanor to “carry weapons” in a public park and to carry a gun or club “with the intent to go armed.” The laws were enacted prior to recent Supreme Court cases clarifying the scope of citizens’ Second Amendment rights (such as Bruen in 2022). None of the plaintiffs were charged with a misdemeanor under the statutes, unlike an “as applied” challenge. They merely claimed that they were actually “injured” because they “might” be subject to the law. Pure conjecture, producing a purely abstract question of law.

After a delay of more than two years, in August 2025, the Chancery Court declared that the statutes were overbroad and therefore unconstitutional in toto. Despite the ruling, the panel did not issue an injunction and stopped short of ordering the state to quit enforcing the laws.  Moreover, the court’s ruling has no binding effect outside of Gibson County.

General Skrmetti filed a notice of appeal and moved to stay judgment pending appeal because the Chancery Court (1) misapplied the standard for making a “facial” challenge (for example, there are potential situations where brandishing a gun in a park as proscribed by the statute would not be protected by the Second Amendment); and (2) purported to define the rights of parties other than the specific plaintiffs in the lawsuit. By holding the statutes unconstitutional in their entirety, regardless of conceivable factual circumstances in which the law would be valid, the Chancery Court exceeded the constitutional bounds of the judicial power.

General Skrmetti argued in his motion that “By reaching beyond its defined role in our constitutional system, the Court has induced widespread uncertainty….By choosing the path of maximum disruption to Tennessee’s statutory scheme, the Court has created unnecessary confusion and risk.”

The irresponsible, uninformed, and (frankly) reckless and self-serving criticism of General Skrmetti’s notice of appeal only exacerbates the confusion. (In contrast, Rep. Chris Todd, R-Jackson, praised the decision but asked Attorney General Jonathan Skrmetti to appeal the ruling for clarity on the enforcement issue.) The determination of the validity—statewide—of a Tennessee statute must be made by an appropriate court in a case where the plaintiffs have legal standing, after adequate briefing of the issues. That court is the state court of appeal or the Tennessee Supreme Court, not a low-level Chancery Court in Gibson County. (Would Jody Barrett, et al. agree that a single Chancery Court could erase Tennessee’s abortion ban, and that the state’s attorney general should forgo an appeal? Of course not.)

Not appealing this decision would be a betrayal of the citizens of Tennessee who expect duly-enacted laws to be enforced absent a proper—and final–determination of unconstitutionality. Hughes v. Lee was decided by the equivalent of a small claims court–the bottom of the judicial food chain. OF COURSE the state should appeal the decision! It would be madness—and a betrayal of all Tennesseans–not to. The hysteria we hear is the howl of a mob taking out its hostility toward Gov. Lee by cynically questioning the integrity and devotion of Tennessee’s stalwart Attorney General, Jonathan Skrmetti.

The fringe right in Tennessee displays the same contempt for constitutional processes and separation of powers that elite liberals demonstrate in their resistance to President Trump. Disregarding the rules in order to achieve a desired policy result is corrosive to the rule of law—and to constitutional government itself. Chancery Courts are not equipped to serve as the final arbiter of Tennessee laws. We have appellate courts for a reason: to produce clear and definitive answers to legal disputes. The state attorney general has a crucial role in Tennessee government; he litigates on behalf of Tennesseans to enforce and uphold laws enacted by our elected representatives.

Arguing that General Skrmetti should yield to the poorly-reasoned decision of a lower court without seeking clarification and correction of the Chancery Court’s mistakes is like saying the swampy rogue judges in blue cities should be able to hamstring President Trump without Supreme Court review.

It is an absurd proposition, demonstrating the unfitness of these fringe figures for the higher offices to which they aspire. Abandoning rules in the pursuit of power is the road to anarchy, and the telltale sign of charlatans and demagogues. Personal antipathy toward our Governor is no excuse to shred constitutional norms. That leads to mob rule.

Honorable Mentions

South Texas College of Law professor Josh Blackman wrote an excellent article for the Civitas Outlook (published by the University of Texas at Austin’s Civitas Institute) entitled “The Failed Lower Court Revolt.” I recommend it highly. Here is an excerpt:

What can explain these lower court decisions? During the first Trump Administration, federal judges found that Trump no longer deserved the so-called “presumption of regularity.” Under this presumption, courts will generally defer to the actions taken by a particular president as if they were regularactions taken by any president. But not for Trump. His tweets were too mean. Even if a specific action may be upheld if taken by another President, Trump, in particular, should not be afforded that deference. As soon as Trump began his second term, federal judges resumed their skepticism of everything Trump does. But what’s different this time is that the Boston Brahman of the judiciary, determined to save the rule of law, are pushing back against the Supreme Court itself. Again, perhaps if there were only one or two of these rulings, they could be chalked up to good faith disagreements. But the breadth and scope of these rulings are unmistakable. 

Perhaps we can make an addendum to this concept of the presumption of regularity. No President can actually lose this presumption. This deference is afforded to the President by virtue of his victory in the election; nothing his administration says or does can affect that presumption. But federal judges lack any such accountability. I think the Supreme Court is telling lower federal judges–especially in Boston–that they have lost the presumption of judicial regularity. And so long as they issue rulings that do not faithfully follow precedent, the Supreme Court will feel compelled to intervene on the emergency docket. As Justice Gorsuch explained, “Lower court judges may sometimes disagree with this Court’s decisions, but they are never free to defy them.” 

Another excellent recent article was written by my friend, former Northwestern University law professor Stephen Presser, in Chronicles. Presser explains how the legal academy turned away from adherence to legal rules:  

Over the last 30 years, I have written often in these pages about how legal scholars in the late-20th and early-21st centuries abandoned the notion of objective answers to legal questions and embraced subjective legal philosophies, the core insights of which are that law is simply politics by another name, and legal rules are merely self-serving promulgations of the powerful. 

…

There is at least one prominent law school dean, Erwin Chemerinsky of Berkeley, who has recently published a book titled No Democracy Lasts Forever: How the Constitution Threatens the United States. In a 2022 New York Times op-ed titled “The Constitution is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale made a similar argument.

…

The situation is more dire than even Shapiro suggests, because we are at a point in the legal academy where the very notion of objective legal rules—to say nothing of traditional biblical values and the belief in the rule of law itself—may no longer be widely held. Progressive law professors are now the majority, and to them, the United States is a land of systemic racism, vicious patriarchy, and uncaring capitalism, whose institutions must be radically altered. 

Imagine that: prominent law school deans and Ivy League law professors warning that our Constitution is a threat, because it stands between the mob and the Left’s pursuit of power. Rules are important—both procedural and substantive. When elected officials and candidates argue that rules should be disregarded to achieve desired results, they are telling you that they don’t believe in law—only power. And nihilistic charlatans are the last people to whom you want to trust with power.