Debates over public policy in the United States are firstly concerned with whether the policy is legal, with the consequences being a distant secondary concern. This is most acute in debates over executive actions. Analyzing the legality of executive action is important because a president’s actions that violate the law can impose numerous harms without checks, leading to future expansions of centralized power based on earlier precedents that are difficult or impossible to claw back. The rule of law, as intended, guarantees a degree of stability with reduced uncertainty, lower transaction costs, and less danger of capricious government actions. The rule of law isn't perfect protection, nothing is, but it does constrain the power of the government to engage in some harmful actions sometimes. However, the debate over the legality of a policy proposal regularly crowds out the debate over whether a policy proposal is good, whether it will achieve its desired ends, or whether those ends are worth achieving.
The Legalism Fallacy is the assumption that a policy is good because it’s legal and a focus on the legalities to the exclusion of consequences.
Once the courts settle the legal issue, many people generally assume that the policy is good. The debate stops there and crowds out further discussion of the consequences and whether they are good. People frequently conflate the legal with the good, so they stop arguing over whether a policy is good when it’s deemed legal. The Legalism Fallacy isn’t ubiquitous and it isn’t universal, but it happens too often and to a destructive extent. The Legalism Fallacy is the assumption that a policy is good because it’s legal and a focus on the legalities to the exclusion of consequences.
The Legalism Fallacy is distinct but related to a few different fallacies. Its closest relative is the argumentum ad populum, an informal fallacy where someone claims a truth or affirms that something is good because most people think so. The Legalism Fallacy is more distantly related to the is-ought fallacy (or is-ought problem), the erroneous idea that because something is a certain way, it should be that way and vice versa. One side in a debate always needs more than an "is" statement to get an "ought." It’s also similar to status quo bias, a preference for the current state of affairs. The Legalism Fallacy worsens debate, reduces the quality of public policy, builds precedents for expanded future government power, and disarms intellectual arguments on both sides.
On immigration, it's common for nativists to call immigrants they don't like "illegal immigrants," even if they entered lawfully and are lawfully present. People commonly say, "I'm against illegal immigration, not legal immigration.” But this isn’t true in many (probably most) cases. The politicians most upset about illegal immigration and the resulting border chaos are usually the first to support restrictions on legal immigration. If Congress massively expanded legal immigration tomorrow, almost all those who complain about illegal immigration would oppose it. In that way, the word “illegal” is just a way of saying “bad” and really a consequentialist argument disguised as a legal argument. In much of the debate over executive actions, concerns about the law are just a cover for opposition for other reasons. The distribution of opinions about the legality of executive actions is positively correlated with disagreements about the underlining policy itself, not the legal issues. It’s not a perfect correlation, but it’s positive.
But using the term "illegal" to really mean "bad" makes the debate worse. Words have meanings, and the misuse of the term "illegal" obscures the actual policy disagreement, so pundits, experts, the public, and policymakers end up talking past each other. It's hard enough to resolve a dispute when the terms are clearly defined; it's nearly impossible when nobody understands each other or when they speak in inconsistently understood euphemisms. The Legalism Fallacy makes it more difficult to understand each other.
There are numerous other examples of the Legalism Fallacy in action: The debate over President Biden’s student loan forgiveness plan, President Obama’s Deferred Action for Childhood Arrivals (DACA), and President Trump’s ban and imposition of new restrictions on immigrants and travelers from Chad, Iran, Libya, Somalia, Syria, Yemen, North Korea, and Venezuela.
Proponents and opponents of these executive actions argued about their effects. Supporters of student-loan forgiveness claimed that loan repayments unfairly burdened students, that good things would happen by forgiving government loans, and that it was a one-time cancellation of debts. Opponents argued that it would cost taxpayers $519 billion-$1 trillion, create bad incentives for borrowing because nobody believes that this is a one-time forgiveness, and that it would disproportionately benefit people with higher incomes. DACA proponents argued that legalizing illegal immigrants brought here as children would have positive economic effects, focus immigration enforcement on real criminals, reduce the size of the black market, and legalize a group of people who were culturally American. Opponents argued that amnesty is bad for economic, security, political, and social reasons. Proponents of President Trump's bans and restrictions on some immigrants argued that they would reduce terrorism. In contrast, opponents argued that the threat of terrorism from foreigners was small, the proposed policy would not have prevented the entry of a single terrorist if implemented since 9/11, and that the government justified its ban with opaque and goofy criteria that would either result in banning immigrants from many more countries or almost none.
The debate over President Trump’s travel and immigration restrictions quickly turned into a high-stakes legal debate, and concerns about the costs and benefits faded into the background. Whether the law allowed President Trump to issue such an order became paramount – and the reason is understandable. Only the courts could overturn the travel and immigration ban while Trump was president.
Courts focus on interpreting laws. Courts aren't that interested in whether the "President's chosen method of addressing perceived risks is justified from a policy perspective," nor are they interested in requiring the president to "conclusively link all of the pieces in the puzzle before [courts]" in the context of international affairs and national security. The "plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.” So wrote the Supreme Court in its Trump v. Hawaii decision that ruled the Trump bans were legal.
As much as the Supreme Court's legal reasoning bothers me, I can't fault the courts for wanting to stick with legal questions. Perhaps they could tell whether the risk analysis method is sound, but a judgment about the costs and benefits is ultimately beyond the competency of judges in almost all cases. A court of "philosopher kings" would result in worse legal reasoning, poor factual judgments, more uncertainty, and inconsistent switching between those different methods of analysis to justify decisions. But courts’ role in reviewing policy incentivizes policymakers and the public to focus on the legal arguments and ignore the consequences. These factual debates over the consequences somewhat restrained the legal justifications for the executive actions given by the president, but they didn’t legally matter in the final determination.
So, what’s the big deal? The Legalism Fallacy has grown along with the role of the courts in evaluating policy – especially executive actions. The Legalism Fallacy is a symptom of a relative power shift in federal institutions, namely the decline of Congress and the increased power of the Presidency and the bureaucracy. This shift occurred as much by the congressional abdication of power as by presidential usurpation.
In 2001, Elena Kagan wrote that “[w]e live today in an era of presidential administration.” Since then, the power of the Presidency has grown tremendously, as my colleague Gene Healy has documented. The Legalism Fallacy is a canary in the constitutional coal mine, a consequence of how the American government functions rather than how the Madisonian theoretical framework, three independent branches that jealously guard their power and check each other, is supposed to function. Congress has incentives to selfishly give its power to others, as Gene Healy explains:
In fact, in both domestic affairs and foreign policy, delegation holds distinct advantages for individual members of Congress, allowing them to position themselves on both sides of any given issue. At home, they can take credit for reform when they pass a high-minded, broadly worded bill, and they can please their constituents by railing against executive branch agencies that use that broad language to impose unpopular costs. Delegation is a “political shell game,” says New York Law School‘s David Schoenbrod: by passing a vague, expansive statement in favor of environmental protection, such as the Endangered Species Act, Congress curries favor with the majority of Americans who favor conservation. Then, when the Fish and Wildlife Service restricts logging throughout the Pacific Northwest to preserve habitat for the Spotted Owl, congressmen get to rail against the bureaucracy for abuse of the authority delegated to it. Members derive similar benefits when, through delegation or inaction, they leave to the president the final decision to go to war — they get to take credit if the war goes well, and blame the president if things go badly.
The Legalism Fallacy didn’t cause that institutional shift toward executive power, but it makes future power shifts in that direction more likely by substantially worsening the quality of debate. The increasingly reflexive reaction to policy changes is “that’s illegal," which means policymakers in Congress and elsewhere will free-ride on courts to debate whether a policy will go into effect. People won't evaluate the policy on consequentialist grounds and instead rely on lawyers to make legal arguments. This weakens the political immune system’s ability to weed out bad ideas, especially in Congress – the body that is supposed to debate them – but also in the broader public.
Perhaps I’m giving too much credit to democratic deliberation, but focusing on legal arguments over consequentialist arguments will only worsen the ability to evaluate a policy on consequentialist grounds. Why run a cost-benefit analysis of a policy when legal arguments determine whether a policy is enacted? It's more rational to invest time and effort in legal arguments.
Rumors to the contrary, Congress still legislates. The consequences of proposed bills matter in legislative debates, but the focus on legalities in most other areas of policymaking dulls the consequentialist arguments. Cost-benefit analysis and reasoned disagreement about the consequences of a policy are always inefficiently undersupplied, but focusing on the legalities exacerbates that undersupply. If most policy debate is over legal questions, people will use the skills and knowledge they’ve developed in those debates when analyzing policy consequences. But legal skills and knowledge are less useful in understanding consequences. Thus, arguments about legality can strong-arm arguments over the consequences of the policy. People have limited time, mental energy, and knowledge. They ask whether a policy is legal first, but then often fail to ask about the consequences when that question is settled.
Perhaps the Legalism Fallacy is the best we can do given American institutions. Understanding the consequences of public policy is difficult, especially as new policies interact with existing laws. Estimating the consequences requires assumptions, models, statistical analysis, cost-benefit calculations, and predictions of how new incentives will operate under imperfect information – all challenging concepts open to divergent opinions at every step of the analysis. Focusing on the legal questions first and to the exclusion of consequences may, in most cases, be the most we can expect from the government, policymakers, experts, and the broader public. Perhaps things would be different if Congress behaved as Madison predicted it would. The Legalism Fallacy isn’t true in all cases, but I can confidently make one prediction: The Legalism Fallacy’s importance will persist, and the consequences will be frustrating.