Friday, November 15, 2013

More on Selective Enforcement as Legislation

My previous post raised the question in the context of Obama's apparent intent to unilaterally modify his healthcare legislation. But it is an interesting problem more generally. The theory of our system is that the legislature makes laws and the executive enforces them. But laws cannot, in practice, be perfectly enforced, so the executive is necessarily making the decision about what resources to allocate to enforcing what laws. Where can or should one draw the line between that decision and using selective enforcement to rewrite the law?

This is at least the third time that Obama has offered to do it. The first was when, during his first campaign, he said that under his administration federal marijuana law would not be enforced against people using medical marijuana in conformance with state law—a promise that he promptly broke. The second was when he announced that certain categories of illegal immigrants would not be prosecuted. Revising Obamacare is the third.

Imagine the following scenario at the state level. The governor of California proposes a bill to tax cars that burn gasoline but not electric cars. The bill fails to pass. He responds by announcing that he has instructed the state police that they should enforce speed limits strictly against gasoline powered cars but only stop electric cars if they are going at least twenty miles an hour over the speed limit. 

I am not a constitutional scholar and do not know whether there are legal limits to executive power that would prevent such a tactic. It is legal to selectively tax gasoline powered cars. It is legal for the police to devote their limited resources to catching some speeders but not others, for instance by patrolling highways where they believe speeding is a particularly serious problem. Is it legal to accomplish the substance of the former under the form of something like the latter? 

More generally, what are the limits of such an approach? The executive is not entitled to enforce a law the legislature has not passed. But is it entitled to selectively enforce one that the legislature has passed in order to achieve the effect of one that it has not passed?

Comments from those who know more about constitutional law, state and federal, than I do are welcome.


At 3:47 PM, November 15, 2013, Blogger Shaddox said...

Where would one even find the answer to this question? The Constitution gives no details on the role of the executive branch in enforcing laws; it seems this assumption is simply baked into the definition of the word "executive" and the fact that the President and executive officials must be bound by oath to "support this Constitution."

Perhaps more information could be found in judicial rulings over alleged executive misconduct.

At 3:49 PM, November 15, 2013, Blogger levinebar said...

a pattern of enforcing a statute against one class (e.g. African Americans) and not against other (e.g. Whites) is a pattern of discrimination and a matter for a Federal case. Historically, that federal prosecutor was showing bias by state troopers or local cops, rather than enforcing the discrimination.
But in American jurisprudence, discriminatory application of a statute that applies to all is itself a criminal matter.

At 4:40 PM, November 15, 2013, Blogger dWj said...

This came up a bit in regard to the firings of US Attorneys at the end of 2006, with some of the defenders of the administration insisting that the administration had a right to choose the enforcement priorities of its prosecutors. I'm not sure how much consensus was derived from that.

At 7:42 PM, March 28, 2017, Blogger The Skip Bureau said...

Old post, I know, but I found it, so others might.

There is, indeed, a constitutional issue. The fourteenth amendment to the US constitution, section 1, reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

We are concerned with the last clause, that '...nor shall any state...deny to any person within its jurisdiction the equal protection of the laws.' I don't have cites, but there have been many, many cases where selective enforcement has led to essential nullification of the law in question because certain people were prosecuted and others weren't and thus the law was unequally applied. If this was done to disadvantage one group against another, a fourteenth amendment challenge will attain. If this was done to create law by executive process, it would still fail the fourteenth amendment test.

While the original intent was to enforce all rights for all persons, there having been somewhat of a heated argument going on in the US just before this about certain persons' rights, the essential idea is that the only way to enforce the clause is to enforce unified enforcement of all laws.

'Prosecutorial discretion' allows for some people to be prosecuted and others not, but must not be systematic. This is the biggest problem with Obama's theories, now, mostly, moot, that they were systematic in that the discretion applied to entire classes of people.

The focused use of limited enforcement is also acceptable so long as it does not create discrimination. So, stopping speeders on the highway as compared to city streets would be acceptable but stopping gasoline cars as compared to electric would not because the enforcement would be discriminatory.

Courts, when making this sort of determination, rather often do check the original intent of the law, and, in the case of speeding laws, at least, the intent was to increase safety, so the distinction between electric and gasoline vehicles would not be allowed. Stopping, for instance, heavily-laden semis that were speeding as compared to motorcycles that were speeding might be allowed.

In the case of Obama's immigration orders, at least, he fails on a very important point, that he publicly said his intention was to do an end-run around an intrasigent congress, which means the prejudice in the case would be against him because the court would consider the manifest will of congress embodied in the law and would be able to take as given that Obama intended to circumvent it.


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