The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Lavrenti Beria, the infamous head of the Soviet secret police under Joseph Stalin, supposedly once said, "Show me the man and I'll show you the crime." In the Soviet Union, the regime could always find some crime to pin on anyone it chose to target.
As a general rule, it would be silly to equate the modern United States with a mass-murdering totalitarian state. But in this one respect, the two regimes are more similar than we would like them to be.
Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them.
This sad state of affairs is deeply at odds with the rule of law. Whatever else that concept means, it surely requires that ordinary people be able to readily determine what laws they are required to obey, and that whether or not you get charged by authorities depends more on objective legal rules than the exercise of official discretion. Unfortunately, neither holds true in the United States today.
Several recent developments highlight these painful truths. President Trump's controversial decision to end the Deferred Action for Childhood Arrivals program is one of them. Whether or not some 800,000 people will be subject to deportation ultimately depended on the whims of one man. Additional cases in point include conservative claims that President Barack Obama underenforced a variety of federal laws and liberal fears that Trump is "sabotaging" Obamacare by failing to fully enforce key provisions of that legislation. Few serious political observers are naive enough to believe that presidential decisions on any of these issues were primarily dictated by the neutral application of objective legal principles, as opposed to the political agenda of the administration in power at the time.
There is much to criticize in both Obama's and Trump's approaches to legal issues. But the problem goes well beyond the flaws of any particular politician. The real threat to the rule of law is inherent in the enormous scope of discretion possessed by the executive in a system where there are so many legal rules that almost everyone has violated some of them, and it is not possible for law enforcement to target more than a small fraction of the offenders.
Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws (which, though theoretically less severe than criminal laws, often carry heavy fines and other substantial penalties), even more Americans are lawbreakers. The federal government today regulates everything from light bulbs to toilet flows. There is even a federal regulation making it a crime to advertise wine in a way that suggests it "has intoxicating qualities." The percentage of lawbreakers goes up even further if we include state and local laws and regulations as well as federal ones.
For most people, it is difficult to avoid violating at least some laws, or even to keep track of all the laws that apply to them. For example, it is almost impossible for small businesses to fully obey all the byzantine regulations that apply to them, for home and apartment owners to fully comply with every part of the complex building codes and zoning restrictions that apply in many jurisdictions, or for almost anyone to ensure perfect compliance with our hyper-complicated tax code.
Ignorance of the law may not be a legally valid excuse. But such ignorance is virtually inevitable when the law regulates almost every aspect of our lives and is so extensive and complicated that few can hope to keep track of it.
Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort. Unless you are very unlucky or enter the crosshairs of law enforcement for some other reason, you may well be able to get away with a good deal of low-level lawlessness.
In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion. Inevitably, political ideology and partisanship have a major impact on the latter. For example, federal law enforcement priorities are very different under Trump than they were under Obama.
Even the law itself is often interpreted differently, depending on who is in power. Under the doctrine of "Chevron deference," federal agencies have very broad discretion to interpret and reinterpret the laws they enforce, so long as the agency's view is "reasonable." The result is that the law can change substantially whenever a Republican administration replaces a Democratic one, or vice versa—even if Congress does not pass any new legislation. As Supreme Court Justice Neil M. Gorsuch puts it, an agency can "reverse its current view 180 degrees anytime based merely on the shift of political winds and still prevail [in court]." The enormous scope of federal regulatory law enables agencies to exercise extensive discretionary authority over many aspects of the economy and society.
Some will argue that the answer to these problems is simply to enforce every law to the hilt, without any favoritism or discretion. But the enormous scope of current law—and the vast number of violators—make it impossible to do that. Apprehending and prosecuting more than a small fraction of lawbreakers would require a virtual police state and probably bankrupt the government, to boot.
Some conservatives argue that Obama's systematic use of executive discretion in the case of his DACA and Deferred Action for Parents of Americans immigration policies is especially problematic, far worse than "case by case" discretion. I am skeptical of such claims for reasons outlined here and here. The difference between systematic and "case by case" discretion is more a matter of degree than kind. But even if such distinctions have greater merit than I believe, eliminating policies such as DACA would still leave enormous executive discretion in place. Even in the absence of formal, systematic orders from above, officials necessarily make choices about which lawbreakers to target, and those decisions are likely to be influenced by ideological and political considerations.
Often, such discretion will systematically treat some types of offenders more leniently than others, even in the absence of a formal directive to do so. For example, federal authorities have long chosen to ignore nearly all illegal marijuana possession (and most other illegal drug use) on college campuses. Lots of prominent politicians—including several recent presidents—have benefited from that forbearance. The feds are often less forgiving in other settings.
We might also be able to reduce executive law enforcement discretion if the Supreme Court were to abolish Chevron deference, as Gorsuch rightly advocates. But even if that happened, federal agencies would retain a great deal of discretionary authority to decide which lawbreakers to go after. That is unavoidable so long as the scope of federal regulation remains as enormous as is currently the case. And, in practice, judges would still often defer to agencies' interpretations of complex regulatory laws on which bureaucrats seem to have greater expertise than the judges do. For these reasons, law enforcement priorities would continue to shift—sometimes drastically—whenever partisan control of the White House changed hands.
The only way to make major progress toward establishing the rule of law would be to greatly reduce the scope and complexity of legal rules. In a world where the scope of law is strictly limited, officials might have sufficient resources to go after a much larger percentage of lawbreakers. And if the law were limited to those areas where there was a broad consensus that the conduct in question should be illegal, there would be less incentive for officials to engage in selective enforcement based on the priorities of the party in power. If federal or state authorities engaged in such shenanigans with respect to laws that enjoyd widespread bipartisan support, they would risk provoking a major political backlash.
There is no way to completely eliminate executive discretion over law enforcement or to make the law completely transparent to laypeople. But cutting back on the amount and complexity of law can help us make progress toward those goals.
Of course, it may be we do not value the rule of law enough to sacrifice any other objectives to strengthen it. The laws on the books are not there by accident. Most were enacted because they were supported by majority public opinion, influential interest groups or some combination of both.
Perhaps we just do not care about the rule of law enough to eliminate any substantial number of current laws and regulations—especially those supported by our side of the political spectrum. The rule of law may be less important to us than the rule of men whose agenda we like. If so, we might have more in common with Lavrenti Beria than we like to think.