Lessons Learned from the Trump Rule of Law Stress Test: Beware Bad Faith Actors

Authors

Brian Z. Tamanaha, Washington University in St. Louis School of LawFollow

Document Type

Working Paper

Language

English (en)

Publication Date

2025

Publication Title

Washington University in St. Louis School of Law Legal Studies Research Paper Series

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.

Keywords

Rule of Law, Presidency, Courts, Pretexts, National Security, Emergencies, Presidential Immunity, Unitary Executive Theory

Publication Citation

Brian Tamanaha, Lessons Learned from the Trump Rule of Law Stress Test: Beware Bad Faith Actors, Washington University in St. Louis School of Law Legal Studies Research Series, No. 25-11-01 (2025)

Repository Citation

Tamanaha, Brian Z., "Lessons Learned from the Trump Rule of Law Stress Test: Beware Bad Faith Actors" (2025). Scholarship@WashULaw. 910.
https://openscholarship.wustl.edu/law_scholarship/910