The Morality Of Legality

Resistance from civil servants has been less effective at mitigating illegal conduct from Trump than one might hope, because the U.S. Supreme Court is enamored of a novel "unitary executive theory" with no historical basis, and because Trump has used his illegal attempts to fire independent agency leaders, to fire civil servants without a legal basis, to interfere with federal government unions, and to appoint incompetent people chosen for loyalty, in order to undermine this form of resistance to his illegal acts.

The Morality of Legality holds that it is a moral wrong, and essentially taboo, for those who work in the executive branch to act unlawfully, even if high-level officials much want to act unlawfully, even if circumstances clearly call for the action in question, and even if there is a strong public demand for the unlawful action. The Morality of Legality is less innocuous and more directive than it might seem. It is a red light; it is a conversation-stopper; it empowers law and lawyers. Those who are committed to it will not engage in unlawful action even if no court will be available to strike the action down, and even if there would be significant gains, including political gains, from undertaking the action. 

The Morality of Legality distinguishes nonauthoritarian from authoritarian systems, and it is a fundamental (and puzzlingly unrecognized) feature of the rule of law. In U.S. constitutional law, it can be taken to be codified in the Take Care Clause. Those who are committed to the Morality of Legality are willing to face "litigation risk" and to seek changes in existing law, even if those efforts are more likely than not to fail. The Morality of Legality is often felt as a matter of duty, rather than a product of some consequentialist calculation; but it is probably best justified on rule consequentialist grounds. 

By itself, the Morality of Legality is (mostly) agnostic on the allocation of interpretive authority as between the executive branch and the judiciary. Under emergency circumstances, very narrowly defined, the Morality of Legality might have to yield. The Morality of Legality might also be followed in other places, including of course legislatures and courts, and also private institutions.

Cass R. Sunstein, The Morality of Legality, SSRN (2025).