Thursday, November 14, 2013

Selective Enforcement as Legislation

The poet Ibn Harma performed before the caliph, and so delighted was the Prince of the Muslims that he asked the poet to name his reward.

"The reward that I want from the Prince of the Muslims is that he send instructions to his officials in the city of Medina commanding that when I am found dead drunk upon the pavement and brought in by the city guard, I be released from the penalty prescribed for that offense."

"That is God's law, not mine," the Caliph replied. "I cannot change it. Name another reward."

"There is nothing else I desire from the Prince of the Muslims."

The Caliph thought a moment, then sent instructions to his officials in Medina commanding that if Ibn Harma was found drunk and brought in for punishment, he should receive sixty strokes of the lash as the law commanded. But whoever brought him in should receive eighty.

It is one of my favorite medieval Islamic law and economics stories. In theory, Islamic law is not made by the sovereign but deduced by legal scholars from the Koran and the Hadith, traditions of what Mohammed and his companions did and said. The Caliph accordingly could not change the law against drunkenness. He could not even change the punishment, since it is a Hadd offense, one with a fixed punishment deduced from the religious sources. He could, however, repeal it de facto although not de jure by changing the incentive to enforce it.

I was reminded of this by today's news. President Obama is attempting to forestall congressional efforts to alter the Obamacare legislation by doing it himself without appeal to congressional authorization. Presumably the theory is that, since he is in charge of the executive branch and the executive branch is in charge of enforcing the law, he can simply announce that the part of the law forbidding insurance companies from continuing to offer plans that do not meet the requirements of the new law will not be enforced, at least as far as existing customers of such plans are concerned.

This raises two questions. One is a question of constitutional law, whether what he is doing is in law, as it obviously is in fact, a violation of the division of powers between the legislative and executive branches. The other is a political question. Arguably, the political effects of the present mess will have at least partly died down over the next year. Is Obama making things worse for his party rather than better by pushing the next failure, the result of good risks choosing to keep existing plans and leaving the plans sold through the market to the bad risks, making them very expensive, to just before the next election?

6 Comments:

At 4:33 PM, November 14, 2013, Blogger John David Galt said...

This is a hot topic right now at The Volokh Conspiracy.

The consensus seems to be that a president can order prosecutors not to enforce a law for a period of time, and he can even promise the public that he will do that. BUT, the promise isn't enforceable. So companies that rely on the promise and delay complying with Obamacare can be prosecuted, either immediately or later.

I predict that the president will use this power selectively against his enemies list.

 
At 11:54 PM, November 14, 2013, Blogger Power Child said...

Sort of an interesting contrast with Obama's campaign promise--and, upon election, immediate reneging of that promise--to not go after medical marijuana growers and dispensaries.

 
At 9:07 AM, November 16, 2013, Blogger Patrick Sullivan said...

In the end, everything is a political question. As Andrew Jackson knew when he supposedly said, 'John Marshall has made his decision, now let him enforce it.'

Since the Obamacare maneuvering isn't about criminal law, it's a little hard to think of how a legal question about its non-enforcement would come before a court.

 
At 6:45 PM, November 27, 2013, Anonymous Anonymous said...

What is the story you quote?

 
At 12:11 PM, November 29, 2013, Blogger David Friedman said...

"What is the story you quote?"

Are you asking for the source? It's probably from Mohammed's People, a history of the early centuries of Islam done as a pastiche from period sources, but I was writing from memory so it could be from one of my other sources on medieval Islam.

 
At 10:22 AM, December 03, 2013, Anonymous Anonymous said...

Yes, I was looking for the source, thanks! Relatedly, can you please publish a reading list of sorts for your favorite poems, particularly ones that could be used to teach children lessons that jibe with anarchism (I know that's a strange question, but I think stories are a great way to teach)?

 

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