MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Why We Shouldn't "Just Enforce the Law"

The case of a woman who may be prosecuted for sheltering animals during Hurricane Florence highlights some reasons why it is often wrong to enforce the law.

In debates over issues such as undocumented immigration, the War on Drugs, and others, we often hear the claim that the government should "just enforce the law." If anyone breaks the law, the state is obligated to enforce it against them if it finds out about the violation, and the perpetrators have no right to complain, because they deserve whatever punishment they get.

Perhaps so. But this story about a woman who may be subject to charges for sheltering pets during Hurricane Florence highlights the flaws in that way of thinking:

A Wayne County woman could face charges after sheltering more than two dozen pets as Hurricane Florence impacted North Carolina.

Tammie Hedges runs Crazy's Claws n Paws, a non-profit group which helps low-income families with veterinary bills, pet supplies and other needs.

She's in the process of converting a warehouse space along Route 581 into a shelter. With the storm approaching last week, she offered it as an option for pets to stay.

"The goal was to make sure they were not out there drowning," Hedges said. "We had an elderly couple, they were evacuating that afternoon, and there was no way they could take 18 animals with them."

Through donations, Hedges brought in crates, food and other supplies to help the animals get through the storm. She said volunteers stayed with the animals 24 hours a day...

On Monday, after the storm had passed, she said she got a call from Wayne County's animal services manager Frank Sauls regarding the animals.

She said he told her, "You can voluntarily hand over the animals, or I can go get a warrant."

She surrendered the animals. The Goldsboro News-Argus reported that Sauls said Hedges could still face charges for taking in the animals....

Hedges acknowledged the facility is not formally registered as a shelter, but she said she believes she shouldn't face charges for what happened.

"We're not just gonna let (the animals) suffer and die and drown," she said....

"I think it's really sad that when someone tries to do the right thing, they're punished for it," said Davidson. "I'm hoping they don't file charges. We'd like to see him reach out to her and push the reset button."

Most readers' intuitive reaction to this story is probably that it would indeed be unjust for the authorities to file criminal charges against Tammie Hedges. Far from being a wrongdoer, she should be lauded for sheltering beloved pets who might otherwise have been killed or injured in the storm. But if the government indeed has a duty to "just enforce the law," then she should be prosecuted. While it may seem as if Hedges did a good deed, in reality she's just another scofflaw who deserves to be punished. North Carolina law forbids operation of an animal shelter without a certificate of registration. And if I interpret the state's Animal Welfare Act correctly, violators are subject to a civil fine of up to $5000. If we truly believe the "enforce the law" mantra, the state should force Hedges to pay up!

Nonetheless, it would be wrong for state officials to go after Hedges. One possible reason is limited resources. In a society where there are so many laws that the government cannot possibly target more than a small proportion of violators, it seems wasteful to target Hedges. A prosecutor who decided to pursue her should be admonished to "go fight some real crime."

But resource constraints are not the only reason to let Hedges off the hook. Even if she could be punished at little or no cost to the state (or if the fine assessed against her was enough to cover the costs), it would still be unjust to enforce the law against her. Why? Because, as one of her associates put it in the article quoted above, she was doing "the right thing." Far from being reprehensible, her actions were praiseworthy. Though she probably broke the law, what she did was still right.

But if it is right to break the law to save cats and dogs who might otherwise die in a storm, why not to save humans facing similar dangers? Consider undocumented immigrants fleeing violence and oppression, and those likely to be injured or killed if deported. Similarly, there are people who violate federal drug laws in order to get medical marijuana essential to ease their pain, or purchase organs illegally, because that is the only way they can survive in the face of artificial organ shortages created by federal laws banning organ markets. Perhaps there are other valid justifications for enforcing the law in these cases (though I doubt it). But enforcement cannot be defended simply based on the fact that they are on the books, and therefore must automatically be obeyed.

Today, we praise nineteenth century antislavery activists who operated the "underground railroad" in defiance of federal Fugitive Slave Acts, and condemn government officials who tried to prosecute them. But some modern-day laws - like the examples noted above - also inflict grave harm on innocent people. The Justice Department's current interpretation of immigration law even literally requires the deportation of some escaped slave laborers on the theory that the forced labor they performed for their masters qualifies as "material support" for terrorism. If it is wrong to prosecute Hedges for her efforts to save pets during a storm, it is also wrong to prosecute those who violate immigration laws, drug laws, and other similar legislation in order to save innocent people from oppression and death.

Many nonetheless argue that we have a categorical duty to obey and enforce the law, because we consented to do so. This might be true in a world where government was genuinely consensual, in the way private clubs are; members have at least a presumptive duty to obey the club's rules because they agreed to do so when they joined. "Obey or leave" is often a reasonable demand in such circumstances. But real-world governments are not like clubs, and are not based on any genuine consent. I summarized the reasons why in this post.

Another possible justification for enforcing all laws is the idea that the government officials who enact them simply know better than we do. While ordinary citizens may not understand the rationale for prosecuting Tammie Hedges, the North Carolina state legislature is better-informed and we must defer to their superior wisdom. This theory would be plausible if there was good reason to believe that laws and regulations are enacted through an objective, deliberative process that carefully weighs relevant considerations of morality and practicality. In reality, the people who enact laws are heavily influenced by widespread voter ignorance and prejudice, and by strong biases of their own. To put it mildly, politicians are hardly a profession noted for their outstanding moral insights and objectivity in evaluating evidence.

You don't have to be an anarchist or a hard-core libertarian to distrust the government's moral judgment. Polling data shows that most Americans rate the ethics and trustworthiness of members of Congress at about the same (very low) level as those of car salesmen. If you view the dictates of used car salesmen with suspicion, the same goes for those of government officials whose ethical sensibilities aren't much better.

None of this proves that no laws should ever be enforced, or that it is morally permissible to disobey the law anytime we want to. Far from it. Many illegal activities are morally wrong entirely aside from the fact that there are laws against them. Consider such obvious cases as laws against murder, rape, or theft. In other cases, the activity in question may not be intrinsically wrong, but banning it is the only way to produce some important social benefit (e.g. - tax laws that pay for vital infrastructure or pollution control that could not be provided by private means). There are likely other examples of morally defensible laws, as well.

The key point here is not that no laws are worthy of enforcement, but that the mere fact that there is a law on the books does not mean that it should be enforced, and certainly does not mean we should pursue all violators. This is easy to see in a case like that of Tammie Hedges' animal shelter. But the same principles apply far more broadly.

Admittedly, there is room for reasonable disagreement about which laws are justifiable to enforce, and which are not. People can err in the direction of choosing not to enforce laws in cases where it is actually just to do so. But that risk is no excuse for allowing the opposite type of error to run rampant. In a world with numerous unjust laws and ethically suspect politicians, we cannot accept a categorical "enforce the law" approach to political morality.

UPDATE: Since I wrote the initial version of this post, Tammie Hedges was arrested and charged with 12 counts of practicing veterinary medicine without a license (apparently because she provided medical care to some of the animals she sheltered, at a time when there was no way to reach a licensed vet, due to the storm). Barring evidence that she deliberately or negligently caused harm to the animals, I believe that bringing these charges is no more defensible than trying to go after her for operating an animal shelter without a certificate of registration.

UPDATE #2: Canadian legal scholar Leonid Sirota has a thoughtful response to this post here. He agrees that nonenforcement is likely to be justified in "extreme" cases like that of Tammie Hedges and the Fugitive Slave Acts. But he argues that it should not be permitted in situations where there is room for "reasonable disagreement" as to the justice of the law. If "reasonable disagreement" can be shown merely by the fact that lots of people believe that the law is justified, then there was no reason to oppose enforcement of the Fugitive Slave Acts. Large numbers of people (perhaps even a majority of white Americans) believed that those laws should in fact be enforced. If, on the other hand, reasonability is defined not by the number of people defending the law, but by the quality of the justifications that might be offered for it, then there may well be a good many modern laws that inflict grave harm for reasons little better than those used to justify the Fugitive Slave Acts or the prosecution of Tammie Hedges. I note above the example of immigration laws that used to deport people (including even escaped slaves) to places where they are likely to suffer oppression or even death.

In addition, Sirota ignores the reality (also noted above) that modern states like the US and Canada have so many laws that the government can only realistically target a small percentage of violators. Under those conditions, extensive use of discretion is unavoidable, and officials would do well to use to use it to prioritize enforcement of laws with strong justifications over those that lack them - and especially those that actually inflict grave injustice. As Sirota correctly points out, such discretion can easily be abused in various ways. There can even be cases where the enforcement of an unjust law is the lesser of the available evils, because nonenforcement could lead to still greater injustice in some way. But a "just enforce the law" strategy also leads to abuses and grave injustice. My point is not that enforcement of dubious laws is never defensible, but only that we should reject the general principle that enforcement is always or almost always just, regardless of the merits of the law in question. And in any event wide-ranging discretion is here to stay unless and until we greatly reduce the amount of law on the books (which I would be happy to see, but don't expect to happen anytime soon).

UPDATE #3 (Sept. 25, 2018): In a belated show of good sense, prosecutors have dismissed the 12 charges against Tammie Hedges, probably in response to a public outcry. However, the main point of my post is as valid as before. Under a "just enforce the law" approach, Hedges should have been prosecuted, given that she likely did violate various state laws. The reasons why such a prosecution would be unjust exemplify more general flaws of the "just enforce" theory. And, sadly, many victims of unjust prosecution do not attract so much public attention, and therefore suffer far worse fates than Tammie Hedges.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Eddy||

    Has North Carolina abolished the defense of necessity, or has that defense been officially ruled out in this kind of case?

    The defense of necessity is either part of the law or not, either applicable or not. Before talking about what the law requires, we must first make sure the defense of necessity doesn't apply in these fairly unusual emergency circumstances.

  • Stumble||

    At least in Louisiana there is a reasonable argument that necessity would not apply to this situation. Because necessity only applies to felonies committed, not as in this case, to civil violations. So a smart prosecutor would charge this person with a civil offense and undercut the criminal defense of necessity.

    This type of case is one of those that I think greatly justifies an increase in the ability of defendants to ask for jury nullification. It is impossible to write laws with enough exceptions and defenses to cover every possibly situation, and sadly there is more than enough evidence to show that relying on prosecutorial discretion is just stupid.

  • Eddy||

    OK, here's an update:

    "Hedges is charged with 12 counts of practicing veterinary medicine without a license and one count of soliciting a schedule IV controlled substance. She was taken to the Wayne County magistrates office and later released on a $10,000 secured bond....

    ..."According to her, most of the charges stem from her administering amoxicillin to animals that arrived at the shelter sick. Another was for the use of a topical antibiotic ointment, which she said she got from a nearby Dollar Tree, and still another for the use of Tramadol, an opioid painkiller often used to treat pain in dogs and cats.

    "The charge of soliciting a schedule IV controlled substance came from Hedges' attempt to acquire a donation of Tramadol, she said....

  • Eddy||

    "Wayne County released a Facebook statement on Friday acknowledging the incident.

    "Wayne County Animal Services made contact with Ms. Tammie Hedges and upon entering the facility they developed serious concerns regarding the practice of veterinary medicine without a license and the presence of controlled substances," the statement read....

    "There was sufficient availability at the Wayne County animal shelter for all animals surrendered and no boarding fees were charged to the owners," the statement read. "All animals surrendered were checked out by a licensed veterinarian and animal services is working to reunite them with their owners.""

  • Eddy||

    Apparently, their narrative will be that she's a profiteer who charged for illegal veterinary services when there was a free animal shelter nearby to provide these services for free!

    Note - I'm not saying I agree with their narrative, or that I accept their good motives, but this is probably what they'll say.

  • Eddy||

    Oh, and drugs. Don't forget the opioid crisis.

  • nonzenze||

    If their narrative is in fact true, then they seem justified.

    Seems like a messier factual scenario than originally described.

  • susancol||

    I would not necessarily agree that it's "messier". If you live near a Tractor Supply or other rural "Feed and Seed" store, you will find you can walk into the store and buy many medications (particularly antibiotics) for animal use without a prescription. (Penicillin G is used a lot in cattle.) It's not unusual around our area for veterinarians to provide non-vet individuals with prescription meds when that medication may be used later (at the owner's judgment) when a need arises. Looks to me like it's really a culture thing in the area as to what the vet practice is, how much confidence the vet has in the individual's experience and judgment, etc. It sure seems a stretch to me!

  • Brett Bellmore||

    Factual situations are basically always messier than narratives.

  • ||

    With this kind if law enforcement, why in hell don't most people support the Libertarian party???

  • Ed Grinberg||

    Most people are not insane. They understand that the alternative to law enforcement is anarchy, chaos.

  • Eddy||

    Or in this case, cats and dogs living together.

  • Eddy||

  • darkknight9||

    Priceless Eddy, priceless. :)

  • Negi||

    Bc the libertarian party is affiliated with holocaust denying loons like Ron Unz.

  • epsilon given||

    To be sure, there's nothing more libertarian than setting up a totalitarian government that gathers people without warrant to execute them without trial!

  • EscherEnigma||

    Broadly speaking, because when folks show an interest in the Libertarian party they inevitably end up talking to libertarians and that ends up nixing any continued interest in a lot of people right there.

    Y'all are a pretty hostile crowd to anyone that doesn't fall perfectly in-line with your thinking, including each other.

  • Negi||

    Most libertarians don't vote for the libertarian party.

  • EscherEnigma||

    Yes. And the question that I was answering was "why?"

  • OldCurmudgeon||

    Because necessity only applies to felonies committed, not as in this case, to civil violations.

    Because Louisana, I guess... but that's exactly backwards from the way it should be; to the extent you have a privileged to violate laws due to necessity, it should be applicable to the minor/less important laws. I mean seriously, that state claims you can assault someone but can't speed due to necessity?

  • Johannes Dänske||

    " ... relying on prosecutorial discretion is just stupid."
    Amen, sir. Having been there, done that, and seen that far too many times, as well as publicly pointing out dirty cops, I agree 100%.

  • FiftycalTX2||

    Every person that reads this story needs to contribute to fight this travesty of justice. I don't know who complained. Was it a local vet? Who knows. All I know is I sent them $50 to fight for justice. I don't know if the local govt has been taken over by socialist "can't cut the grass without a permit" types, but this CANNOT STAND!

    Give what you can.

    http://crazysclawsnpaws.wixsite.com/ccnp

  • MollyGodiva||

    I think we need to prosecute all law breakers to the fullest. The drain of resources and injustices like this one will show the public that we have too many laws. Only then will we have an opportunity to make real change.

  • Sarcastr0||

    And who cares about those ground under the boot of merciless, unthinking justice - a small price to pay for libertarian utopia!

  • perlchpr||

    The problem with this response is that it glosses over the fact that people are already being ground under the boot, and as things stand now, there isn't even a plan to stop it. So at least the idea above has an end state in mind.

  • Sarcastr0||

    Except MollyGodiva wants to make it worse to the point of provoking outrage. Even if that would work, it's not a good idea.

  • MatthewSlyfield||

    It may be the ONLY thing that will work, what then?

  • NToJ||

    Law enforcement still has to make prosecutorial decisions with finite resources. Should they make them randomly to starve the beast into submission? If the end goal is to do away with unjust laws, should they commit all resources towards unjust laws while ignoring, say, kidnapping and murder because we all agree about the usefulness of those laws?

  • piperTom||

    Your ends do not justify these means.

  • Flight-ER-Doc||

    Too many law enforcers and not enough peace officers...

  • Brett Bellmore||

    This is rather different from the illegal immigration issue, because basically nobody thinks that somebody should be prosecuted for what this woman did, regardless of what the law might say; It's considered a bad application of the law.

    Whereas in the illegal immigration case, you don't like the law itself, even if enforced in the situations intended, and you're just seizing on somewhat sympathetic cases (which resulted from a deliberate failure to enforce the law in the first place.) to try to attack applications of the law most people would agree to.

    I don't know of anybody who claims that the law should be enforced in absolutely all circumstances whatsoever, no discretion. But plenty of people don't like systematic discretion being used to undermine a popular law.

  • Michael Masinter||

    Save the pets, not the humans. Perhaps this is the contemporary lesson of Genesis 5:32-10:1.

  • perlchpr||

    I note that your response was an appeal to emotion and authority instead of reason.

  • Rev. Arthur L. Kirkland||

    Some bigots like puppies, kittens, pit bulls, snakes, birds, etc. -- it's the blacks, gays, Muslims, educated women, Jews, professors, Mexicans, atheists, Puerto Ricans, agnostics, and Hispanics they can't stand.

    Also, apparently, Canadians.

  • epsilon given||

    And then there are the bigots who like puppies, kittens, pit bulls, snakes, birds, blacks, gays, Muslims, educated women, Jews, professors, Mexicans, atheists, Puerto Ricans, agnostics, and Hispanics, etc., but just think that blacks, gays, Muslims, educated women, Jews, professors, Mexicans, atheists, Puerto Ricans, agnostics, and Hispanics who were born as citizens of other countries, who want to come to the United States, should do so legally, and that when they wish to become American citizens, should adopt American ways (such as learning English, the Constitution, and the value of freedom).

    And some of those bigots even want a more sensible legal immigration policy!

  • bc15||

    "nobody thinks that somebody should be prosecuted for what this woman did"

    The law is the law. I don't mind *legal* sheltering of animals, but animals should not be sheltered illegally. If an animal needs shelter, it should wait in line for a legal shelter slot. Otherwise, it's unfair to other animals that have been patiently waiting to shelter legally. One of my pets received shelter in the past, but it was at a legal shelter; it didn't jump the line. We should not even consider changing the law or making it easier for shelters to obtain licenses until we demonstrate that we can enforce the laws we already have, i.e., until we can make sure that no animals are sheltered illegally.

  • Negi||

    Incorrect. I think having housepets at all should be illegal because who wamts to live w filthg animals?

  • Onslow||

    I think you nailed it. There's a place for constitutional resistance to federal law. In fact, its been quite successful in our history (WI courts resisting fugitive slave act (positive result); SC constitutional convention nullifying the tariff of abominations and force act (result-lower tariffs with gradual decline promised, and no application of the force act); etc.) I wish more states, including my own, would refuse to comply with the REAL ID Act. State interposition is useful to keep the federal government within its delegated powers, and protect liberty when the three federal branches threaten or fail to protect it; but there must be a constitutional basis for doing so.

    There's no real constitutional basis for not applying federal immigration law to illegal immigrants. Re: policy, I'm for the fence, for deporting illegal immigrants, for ending chain migration, but against state/local LE carrying out federal immigration law, and against the federal government spending conditions being imposed directly on local governments thereby bypassing state legislatures.

  • NToJ||

    The constitutional argument against federal immigration law is at least as good as the constitutional argument for state rejection of the fugitive slave acts.

  • NToJ||

    "But plenty of people don't like systematic discretion being used to undermine a popular law."

    Systematic discretion is what keeps the law popular.

  • Toranth||

    "Leave the laws on the books, but don't enforce them" must be one of the oddest takes I've heard from a supposed libertarian. Of course, so is tying a licensing issue about pets to illegal immigration... but that's Somin for ya. EVERYTHING is tied to his open borders beliefs.
    That's right, we shouldn't hold people accountable for laws (arbitrarily) instead of actually fixing the laws.
    We should allow empathy to let some people break the law, rather than trim back regulatory burdens.
    Bah.

    And, as usual, lots of selfie in this Somin post: 15 links, 9 of which are to himself, and one of which is to his own book on Amazon. Does Somin post articles for any reason other than self-promotion?

  • jdgalt1||

    In principle, I agree with this. Neither police nor prosecutors ought to have (much) discretion about whether or not to enforce laws, because giving them that power means that every time they do enforce the law, it's an act of choice on their part, which breaks the predictability and fairness promised by the Rule of Law.

    The right solution is jury nullification. Preferably at the grand jury level, so this woman doesn't even face trial.

  • NToJ||

    "Neither police nor prosecutors ought to have (much) discretion about whether or not to enforce laws..."

    Shots fired. I'm in pursuit of the shooter. Must disengage, I just saw someone littering. I have the litterer in custody. I'm bringing him in. Cancel that, I just got a call that somebody is harboring animals without a license.

  • Topher S||

    I'm not seeing the dichotomy you're seeing here. Where does Somin suggest that we should leave bad immigration laws on the books?

  • Lee Moore||

    When composing a long rambling commentary, it's probably best to leave out the most obvious red herrings.

    In a discussion of when and whether it is proper for government officials to refrain from enforcing the law, the herring about when and whether the citizen has a moral duty to disobey the law is positively crimson.

  • Dan S.||

    If there are times when the citizen has a moral duty to disobey the law, I'd say that makes a pretty solid case that there are times when it is proper for the government to refrain from enforcing those laws. So its not a red herring.

  • Lee Moore||

    Consider undocumented immigrants fleeing violence and oppression, and those likely to be injured or killed if deported

    Or, consider illegal immigrants who, having fled violence and oppression in, say, Honduras or Somalia, wander the length of Mexico, or fly half way round the globe, eschewing safe refuges along the way, to break American laws. Not to mention those who haven't fled anything other than economic disadvantage.

  • BillyG||

    Aye, apparently the entirety of the western hemisphere south of the US is full of violent, oppressive governments likely to torture and murder their citizens.

  • EscherEnigma||

    That is what Republicans have been saying for years, yes.

  • epsilon given||

    Have they? I don't recall hearing that, and I've been a Republican for years. Could you back up your claim with a few quotes?

  • NToJ||

    Ok, I consider them. What conclusion is it you expect me to reach?

  • Joe_dallas||

    Thats why guys like me cant get on a jury.

    I would find the lady not guilty even if she admitted to the crime.

    Likewise - Legal insurrection showed a video of an large male in the kitchen who forcibly punched a much smaller and middle aged lady, A second lady pulled a gun out at which time the attacker started to back off and slowly retreat out of the restuarant. If that lady had shot the attacker after he started backing off and was no longer an immediate threat, I would never vote for quilt via reason of self defense, even though the law clearly doesnt allow for such an exception for murder .

  • Lee Moore||

    The downside of such prosecutorial discretion is, of course, the Hillary shenanigans, versus, say, the Ted Stevens shenanigans. If the prosecutors get to pick and choose who they prosecute, then we might discover that prosecutors have favorites. And not so favorites.

    Just as some prosecutors may feel that it's not worth chasing after illegal immigrants with fraudulently acquired social security numbers, some other prosecutors may feel it's not worth prosecuting people who firebomb abortion clinics.

    Aside from cost, Brett's distinction is the sensible one. If no one wants the prosecution, then it's reasonable to let it pass.

  • Ben of Houston||

    "Strictly necessary" is a very good standard. Reasonable exceptions do exist for emergencies. Does anyone in their right mind think that a Hurricane is not an emergency?

  • NToJ||

    "When composing a long rambling commentary, it's probably best to leave out the most obvious red herrings."

    "Just as some prosecutors may feel that it's not worth chasing after illegal immigrants with fraudulently acquired social security numbers, some other prosecutors may feel it's not worth prosecuting people who firebomb abortion clinics."

  • Harvey Mosley||

    We should enforce every law at every level for every infraction and do away with the plea bargaining system. Within two months the "justice" system will be so backed up that only the most egregious malum in se(?) laws would be prosecuted. And then we can start getting rid of the thousands of useless laws on the books.

  • ||

    The ultimate problem is that a full-time busybody legislature thinks it has to continually justify its own existence by passing more and more laws, which are more and more trivial and unneeded. The solution is that legislatures should be required to repeal one pointless and unnecessary law for every new law they wish to propose. Or perhaps, tie lawmaker compensation to their legislative output; for every law passed, every legislator would forfeit $1000 of their salaries. We can offer a $200 bonus for every law repealed.

  • Brett Bellmore||

    I like the proposal that there should be a separate chamber of the legislature whose only job is repealing laws. So the only way THEY could look like they were doing something would be by getting rid of laws.

  • Scarecrow Repair & Chippering||

    Or if at any time, 1/2 of the legislators in any chamber have signed up for repeal of any specific law, it is repealed. This wouldn't be as effective as your idea of a separate chamber doing nothing but looking for laws to repeal. But some legislators might campaign on promises to do nothing but search for laws to repeal. I bet the voters would notice.

  • Lee Moore||

    Good idea to make repeals easier than new laws.

    Except that you need to define "repeal" appropriately. You want "repeal", qualifying for the easy passage route, to mean any law that does nothing but remove or reduce a government restriction, regulation, imposition or compulsion.

    Otherwise you make it easy for the dark side to repeal good repeals thereby reimposing the original imposition.

    Properly worded, a one chamber route to "repeal" v. a two chamber + Governor route to new impositions and regulations is an excellent institutional ratchet in favor of liberty and common sense.

  • Scarecrow Repair & Chippering||

    No, repeal simply voids the law. The repeal itself can't be repealed except by re-passing the legislation with a new Governor approval. Most people understand this by instinct, unless they just want to pretend to be world-class quibblers, but then they are over-reaching.

    I don't think there is a legislature in the world which can repeal repeals.

  • Robert||

    The way that's handled is by consolidating the statutes, making repealed passages vanish from existence, and having amendments act only on the statutes, not on momentary acts of the legislature.

    Strangely, the US Constitution doesn't work that way. They keep all the hx in there & never renumber. So you still have the 18th amendment & then the 21st amendment saying the 18th is repealed. Good thing it's not amended a lot, so you don't have to read or search a gigantic tome to be sure a provision is still in force. But then, consolidated statutes sometimes have "notwithstanding" provisions that make you do exactly that, instead of interpolating provisions as explicit amendments of what's there already. Good thing we can search electronically now.

  • jdgalt1||

    The best way to make repeal easier is to make it automatic by default, by writing a sunset rule into the constitution.

  • Scarecrow Repair & Chippering||

    There's another necessary step -- preventing omnibus renew-everything laws. I can't think of any definition of one-topic legislation that can't be subverted by quibbling judges. So my idea is that if all laws are inseparable -- if any part of a law is found unconstitutional, the entire law is voided. And to assist in this, any citizen has to be able to challenge any law for being unclear, inconsistent, vague, etc -- and all such challenges have to be tried by a truly random jury requiring unanimous agreement that the law is clear. If they are confused as to what the law means, if they think the definition is inconsistent with itself, if they think enforcement is inconsistent, then the law is voided immediately without chance of appeal, because by definition, if it is unclear to them, then it is not clear enough to be easily understood by the population at large.

    I'd be willing to grant that there could be literacy and logic qualifications for these random juries. It wouldn't even bother me too much if it eliminated 90% of the population. Enough skeptics and doubting Thomases would leak through to make clarity vital to all legislation. All you'd really need is a dozen laws a year voided to make it a credible threat to legislators.

  • perlchpr||

    I like the idea, but want to reduce the requirements for the jurors. If 90% of the people can't understand a law...

  • Scarecrow Repair & Chippering||

    I personally think if even 10% of the population can't understand a law, that's too much, and out goes the law. But 90% would eventually get rid of the worst laws.

    Don't hurt people and don't take their stuff. That's not quite sufficient; it doesn't explain self-defense. But it's about as complicated as laws ought to get.

  • Scarecrow Repair & Chippering||

    My argument for "just enforce the law" is because we have way too many laws, and that allows the government to weaponize the lawbooks -- to pick and choose who has to obey the law and who doesn't.

    I say laws which are not enforced to the fullest extent possible should not be laws.

    I say anyone charged with breaking a law should be able to not only get away with breaking that law, but the law itself should be voided --- if the law breaker can show the law is not consistently enforced.

    The most obvious such law is speed limits. I don't like police getting a choice in who they chase down and who gets a warning and who gets "10 over" instead of the actual "17 over" as the radar registered. Put out radar speed vans with automatic tickets, or don't do it at all. Make then warnings for 1-10 over if you want, but do it automatically.

    But all sorts of other laws apply -- remember when that DC newscaster had an illegal 30 round magazine on his TV show? No charge -- I want him either charged as anyone else would have been, or that law thrown out. Politician caught with a blunt? No pass if no one else gets a pass.

  • Curly4||

    Yes, if laws are enforced or not at the whelm of a prosecutor then the laws can be weaponized and used against the population to enforce changes in rights we are supposed to have. So we should have a minimum of laws and those laws should be enforced equally for all.

  • Eddy||

    Bear in mind that not every prosecutor and bureaucrat pounding the table and screaming "the law is the law!" is actually giving a correct statement of what the law means or who is guilty under it.

  • Eddy||

    Likewise with our asylum laws. Just because some jerkoff judge or bureaucrat says that literal slaves can be denied asylum because they were enslaved by terrorists, doesn't mean that the law as actually written by Congress has that meaning.

  • Krayt||

    Maybe the judge is hinting to Congress to fix the law, instead of lying supine with fear as is their wont, relying on judges to tackle anything remotely controversial.

  • Eddy||

    DoJ bureaucrats said the law means no asylum for literal slaves of terrorists - that doesn't mean the law is actually what the bureaucrats said it was.

    If the law isn't what the DoJ bureaucrats said it was, so (for all my skepticism of Congress) maybe this terrorist-slave situation this is a case where Congress is not to blame.

  • Krayt||

    You buttressed my point rather than refuting it. Congress can run around with their hands up claiming that's not what was intended (rather than using it as impetus to change the law.)

    These cretins rely on misinterpretation and "unintented" consequences to give government maximal power.

    Keep in mind this is often touted as a feature of the regulatory state -- removal of politics from regulation so Congress can facetiously claim they didn't intend this or that unpopular thing.

  • Eddy||

    Yes, Congress certainly ought to smack down those who misapply its laws - hopefully Congress should act in its judiciary capacity, by holding impeachment proceedings.

    Because just passing a law that says "we meant what we said" isn't going to express the seriousness of the issue enough.

    So I say, impeach the bureaucrats who said that the slaves of terrorists are to be denied asylum because their enslavement aided terrorism.

    Warn off those who might take liberties with the statutes Congress wrote.

  • Curly4||

    This brings up the question "Should there be a law on the books that is not to be enforced? Or should it be repealed or modified by the appropriate legislative body? I say that the legislative body should do its job of making laws and repealing laws as needed.

  • Thomas O.||

    A lot of these unenforceable laws were brought about by busybody lawmakers who wanted to virtue-signal their values and earn brownie points with their conservative constituents. "We can all agree that gays are icky, so let's pass a law outlawing gay sex! We can only enforce it by being Peeping Tom Police, but God will look favorably on us!"

  • EscherEnigma||

    And when the state refuses to repeal the bad law because they *want* to enforce it?

  • Perseus`||

    "Today, we praise nineteenth century antislavery activists who operated the "underground railroad" in defiance of federal Fugitive Slave Acts, and condemn government officials who tried to prosecute them."

    "We" might include Somin, but Lincoln rightfully did not precisely because of the extremely delicate political balance that Lincoln was trying to maintain, much like the divisive issue of illegal immigration. Like the radical abolitionists, Somin has an unfortunate tendency of being someone who is infatuated with abstract moral ideology.

  • Eddy||

    Delicate or not, even though Lincoln acknowledged the obligations of the Constitution's fugitives-from-service clause, he did not necessarily accept the Fugitive Slave Law as written. From his first inaugural:

    "In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave?"

    Bear in mind that from the point of view of the time this was verging on "extremism." The "moderate" position was that the 1850 law should not be amended, but be enforced as written. But Lincoln's reference to the safeguards of civilized jurisprudence almost certainly included trial by jury.

    And it is only a small step from here to the position taken by people a bit more "radical" than Lincoln - that when enforcing the fugitives-from-service clause, the constitutional guarantees of human rights from other parts of the constitution should also be observed: A judicial hearing, the right to habeas corpus, and trial by jury. All three of these constitutional rights were disregarded by the 1850 act, but the attempt by antislavery people to enforce these constitutional provisions was considered "extremist" and a provocation which would lead to disunion.

  • Eddy||

    I think the reason the slave forces didn't want to enforce the constitutional guarantees of judicial hearing, habeas corpus and jury trial is that they knew that, Portia-like, the slaves' defenders would use these rights to thwart the return of alleged fugitives - all by strictly legal means!

    One could argue that it was the slave interests who were lawless in their hostility to three key constitutional rights.

  • Scarecrow Repair & Chippering||

    "Could" argue? It's been a long time since I read much on fugitive slave laws, but wasn't one purpose of the 1850 compromise which created that law to "correct" previous versions which did have the normal constitutional protections and thus were leaky as heck?

  • Eddy||

    Certainly, the 1793 version wasn't as packed with constitutional violations as the 1850 violation - one could say this is why the slavers were dissatisfied with it.

    In fact, a lot of fugitive recoveries weren't via legal proceedings, but via some guy who claimed he was the "owner" (or worked for a purported "owner") just wandering into a free state, capturing a black person, and dragging or her down South without due process.

    The Supreme Court said this was OK so long as the person seized was actually a slave, but the kidnappers would always say that, and if it turned out they kidnapped a free person, what legal remedy was there? The state where they did the kidnapping could file charges, but the slave states wouldn't extradite.

    Another legal lacuna.

  • Eddy||

    Here's an interesting case (from R. J. M. Blackett's *The Captive's Quest for Freedom*) showing how the definition of a "fugitive from service" was tortured beyond what the Constitution required.

    A couple of kidnappers lured a New Jersey woman into Pennsylvania and dragged her into Maryland on the supposition that she was a fugitive slave. They also took her baby, who had not only been born in a free state but had apparently been conceived in a free state. The kidnappers claimed that they took the baby because they didn't want to break up the family!

    Strangely unmoved by this sort of compassion, a Pennsylvania court convicted the kidnappers, but Democratic governor William Bigler pardoned them.

    Bigler's punishment was to get elected Senator and have a college residence hall named after him.

    https://bit.ly/2I6cKAH

  • Eddy||

    Where are the SJWs when you really need them?

  • croaker||

    Out harassing Ted Cruz in a restaurant.

  • Scarecrow Repair & Chippering||

    My understanding of antebellum slavery political arguments is that slavery, especially of Africans, was not the main cause of tension between North and South. It was the 3/5 clause giving inordinate political power to the South in Congress and the Electoral College. It really stuck in Northerners' craw that a minority of white Southerners could exert so much disproportionate control over Federal policy, hold up westward expansion, control foreign policy, trade policy, tariffs (which were the major source of government revenue). The slavocracy, they called it.

    I've often wondered how the US would have been different without that 3/5 clause. I'd guess slavery would have been limited a lot sooner because more new states would have been admitted to the Union, and almost all would have been slave-free. maybe eventually the North would have rammed through some kind of manumission policy, banned slavery for future births as many states did, and otherwise weaned the nation of slavery more smoothly.

    But I don't know enough about that early history to make an educated guess.

  • perlchpr||

    I was discussing the idea of "what if the US had been really serious about not allowing slavery when founded?" with my father the other month, and he thought it probably would have led to two separate countries, which would have led to the Northern one losing the War of 1812.

    So that's probably bad. But so is slavery. I dunno.

  • MatthewSlyfield||

    "It was the 3/5 clause giving inordinate political power to the South in Congress and the Electoral College."

    Without "slavery, especially of Africans" there would have been no 3/5ths clause.

  • Scarecrow Repair & Chippering||

    Without "slavery, especially of Africans" there would have been no 3/5ths clause.

    But not the reverse. Slavery would have existed without the 3/5 clause, although whether the slave states would have ratified the Constitution, I do not know.

  • Brett Bellmore||

    "It was the 3/5 clause giving inordinate political power to the South in Congress and the Electoral College."

    I am SO tired of this BS take on the 3/5ths clause.

    For decades the left have been restive under the Constitution, and infuriated that it was so much popular than they were, that in any open fight against it they were bound to lose. So they came up with the strategy of claiming that basically the whole Constitution was just designed to preserve and advance slavery.

    And the keystone of this has been standing the 3/5ths clause on its head.

    If there were no 3/5ths clause, if the whole topic were simply not addressed by the Constitution, slaves would have counted for 5/5ths for purposes of representation, just like women and children. And yet, still not been able to vote. And the political strength of the slave states would have been GREATER, not less. They didn't want the 3/5ths clause, they wanted no clause at all!

    Would it have been better if it had been a 0/5ths clause? Sure. But then the Constitution wouldn't have been ratified! So the opponents of slavery compromised, and took what they could get, a 3/5ths clause.

    That's why history calls it the 3/5ths compromise.

  • Scarecrow Repair & Chippering||

    That's an interesting take on the 3/5 clause which I have never heard before. I'll have to google around to see what I think about it; I'd think such a contrary opinion would have been known even if it was considered worse than thinking Nazis were popular.

  • Brett Bellmore||

    "which I have never heard before."

    And that's what burns me. That used to be the standard take on the 3/5ths clause, only during the last few decades has it been portrayed as a pro-slavery clause, as part of the effort to discredit the Constitution so that it can eventually be dispensed with.

  • Krayt||

    It's perverse that the 3/5ths rule worked against the interests of those persons. And a full 5/5 without the right to vote would have been worse still.

  • Scarecrow Repair & Chippering||

    I am SO tired of this BS take on the 3/5ths clause.

    I stand corrected. It is true that the slavocracy was over-represented in Congress, and I suppose my disgust with the 3/5 clause is so ancient that I somehow inverted its influence. In fact, you are right, and if I had thought about it for even a few seconds, I would have known that.

    But my main point was my (more recent) understanding that the North was angrier about the slavocracy's undue power than slavery itself. Most northerners wanted blacks sent "back" to Africa or relocated to a newly-made Caribbean or Central American nation. They did not want blacks around period (or Catholics or Asians, for that matter). But of course, without Gallup, there's a lot of guesswork in this, mostly from newspapers.

  • Brett Bellmore||

    "Most northerners wanted blacks sent "back" to Africa or relocated to a newly-made Caribbean or Central American nation."

    I don't think we have to guess about that. That' was Lincoln's own position, as well as Jefferson's. And in fact, the country of Liberia originated in an abortive effort to actually execute this policy.

  • rsteinmetz||

    At the time of independence slavery was legal in most if not all of the original 13 colonies. It was far more common in the southern states where large scale farming of cash crops (rice, sugar, cotton and others) was more common. Slavery was eliminated in the northern states by various measures over time. There were still a few slaves in the "free" states in 1860.

    The situation in 1780 was not the same as the situation in 1860, partly because slavery had become more profitable due in part to the invention of the cotton gin.

    Finally not all slave states succeeded, Delaware, Kentucky, Missouri and Maryland come to mind. West Virginia "succeed" from Virginia

  • Perseus`||

    Your quote omits what he said before and after, the net effect of which is that Lincoln would not employ prosecutorial discretion as end run around returning genuine fugitive slaves.

  • Eddy||

    What are you babbling about? I said that "Lincoln acknowledged the obligations of the Constitution's fugitives-from-service clause" and I gave a link for lazybones like you in case you wanted to know the exact phrasing he used on that point.

    You short-bus-riding special person.

  • Eddy||

    The only person being misleading is yourself. Here is a relevant passage from the inaugural:

    "The fugitive- slave clause of the Constitution and the law for the suppression of the foreign slave trade are each as well enforced, perhaps, as any law can ever be in a community where the moral sense of the people imperfectly supports the law itself. The great body of the people abide by the dry legal obligation in both cases, and a few break over in each. This, I think, can not be perfectly cured, and it would be worse in both cases after the separation of the sections than before. The foreign slave trade, now imperfectly suppressed, would be ultimately revived without restriction in one section, while fugitive slaves, now only partially surrendered, would not be surrendered at all by the other."

  • Eddy||

    So in short, I never said he'd use prosecutorial discretion, but if you want to bring it up, he basically said he couldn't help it if the act was sometimes obstructed, and the only reassurance he offered was that enforcement would stop altogether if there was "separation of the sections."

    What goober college did you go to?

  • Eddy||

    Specifically, he said he could not "perfectly cure()" the supposed problem of the fugitives-from service clause not getting 100% enforced.

    Not only did you ignore that passage, you didn't even try to paraphrase it, so that the reader who didn't read the Inaugural would be misled by your remarks.

  • Eddy||

    If you want a full-context quote, you'll find more swipes against the slavers than you're willing to make. But, reader, judge for yourself:

    "There is much controversy about the delivering up of fugitives from service or labor. The clause I now read is as plainly written in the Constitution as any other of its provisions:

    "No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.

    "It is scarcely questioned that this provision was intended by those who made it for the reclaiming of what we call fugitive slaves; and the intention of the lawgiver is the law. All members of Congress swear their support to the whole Constitution--to this provision as much as to any other. To the proposition, then, that slaves whose cases come within the terms of this clause "shall be delivered up" their oaths are unanimous. Now, if they would make the effort in good temper, could they not with nearly equal unanimity frame and pass a law by means of which to keep good that unanimous oath?

  • Eddy||

    "There is some difference of opinion whether this clause should be enforced by national or by State authority, but surely that difference is not a very material one. If the slave is to be surrendered, it can be of but little consequence to him or to others by which authority it is done. And should anyone in any case be content that his oath shall go unkept on a merely unsubstantial controversy as to how it shall be kept?

    "Again: In any law upon this subject ought not all the safeguards of liberty known in civilized and humane jurisprudence to be introduced, so that a free man be not in any case surrendered as a slave? And might it not be well at the same time to provide by law for the enforcement of that clause in the Constitution which guarantees that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States"?

    "I take the official oath to-day with no mental reservations and with no purpose to construe the Constitution or laws by any hypercritical rules; and while I do not choose now to specify particular acts of Congress as proper to be enforced, I do suggest that it will be much safer for all, both in official and private stations, to conform to and abide by all those acts which stand unrepealed than to violate any of them trusting to find impunity in having them held to be unconstitutional."

  • Eddy||

    I acknowledged that - thank God - there were some people who were more "radical" than Lincoln and were willing to directly attack the 1850 Act - which, after all, violated three separate provisions of the Constitution: Art. III (trial by judge); Art. I (9) (habeas corpus) and the Seventh Amendment (trial by jury in cases at common law, a phrase broad enough to encompass the common law write de homine replegiando (sp?)"

  • Eddy||

    One of these radicals was part of Lincoln's "Team of Rivals" until his Presidential ambitions got him kicked upstairs into the Chief Justiceship - I refer of course Salmon Chase, known before the war as the "attorney general for fugitive slaves."

  • Perseus`||

    Contra Lincoln, Somin positively praises scofflaws and condemns government officials who prosecute them. Somin's view goes entirely against the entire thrust of Lincoln's statesmanship and his Cooper Union Address. But apparently that is too difficult for you to understand and you prefer to drone on and on pedantically about tangential matters.

  • Eddy||

    Fuck off, literal slaver.

    In and of themselves your remarks aren't worthy of response, although I'll observe that Lincoln at various times found the "radicals" (a) annoying and (b) useful to have as allies when he wanted to strike a particularly hard blow against slavery.

    Naturally you evaded my remarks about how the Compromise of 1850 was no law at all - charitably I'll simply assume I used too many big words for you to understand.

    Violating an unconstitutional statute isn't being a "scofflaw."

    But by all means justify that constitutionality of that enactment if you have the skill to do it.

    Shikha Dalmia is a *Reason* writer who is often mocked for comparing the immigration laws to the Fugitive Slave Act of 1850, but at least she was saying both laws were *wrong,* not (like you) saying the Fugitive Slave law of 1850 was right and constitutional.

  • Perseus`||

    I'm quite capable of understanding your unfortunate lack of moderation in using the comments for publishing your unending stream of consciousness and hurling vulgar personal insults.

    Nothing you have written in any way undermines my point that whatever his personal view, Lincoln insisted on enforcing the law (until properly changed), which he did (e.g., see Lincoln's draft letter dated 16 Dec. 1861 that he created for U.S. Marshall Ward Lamon when some senators complained about Lamon's enforcement of the law in which the law is referred to as a "valid law"), and he did not valorize those who proudly violated it.

  • Eddy||

    I actually quoted the part where Lincoln indicated he'd enforce the statute until it was repealed.

    You omitted key parts of Lincoln's words and projected that selfsame behavior onto me...I'm sorry I allowed myself to be provoked by your conduct. :(

    However, bear in mind, reader, that perseus is the one asserting without evidence that the Fugitive Law of 1850 was constitutional, and he's still indignant that there were people who disobeyed this statute.

  • Eddy||

    (Want t guess who signed the repeal bill?)

  • Mesoman||

    I started getting a feeling a little ways in, and sure enough, another screed by immigration absolutist Ilya Somin.

    Dude, everyone knows your opinion on immigration.

    It is radical.

    And, it is boring.

  • Krayt||

    So in my cynical way, Americans in general care about injustice, but this issue is being driven at the political level by a fight over the importation of people to make the Democratic base larger, which is the real reason on both sides. It's a double panic given apparently the Democrats have given up on traditional blue collar workers, whom the Republicans have captured en mass for the first time since Reagan.

    And some arguers are driven by TDS rather than usual party politics.

    Beyond concern for injustice, the other reason to import people is Julian Simon's observation that, in a free society, the more the merrier for rapid progress and solutions to problems.

    But Simon gets in the way of some of the laws and regulations the left likes, so you know.

  • Smooth Like a Rhapsody||

    "Prosecutorial discretion should be exercised in rare instances", is a far cry from, "We should never enforce the law ever, at any time".
    I would hope a law professor would know the difference.

  • AmosArch||

    On a related note I often marvel how again and again the only argument progs come back to when arguing for forcing private non life and limb saving businesses to be forced to bake cakes and take photos for people they don't want to is 'because its the law'.

  • apedad||

    Way to miss the entire point...

    Absolutely no one is saying to ignore the law.

    Just in some cases, like the one highlighted above, the law doesn't need to be enforced to its fullest.

    Maybe a warning in this case would have been sufficient.

  • Bob from Ohio||

    You agree that the anti-discrimination law in Colorado should likewise not be enforced against the baker I assume.

  • jph12||

    No, "just enforce the law" does not mean that North Carolina should prosecute her because nothing that she did is prohibited by North Carolina law. What she did does not qualify as operating an animal shelter. The pets that she housed were not "seized, stray, homeless, quarantined, abandoned or unwanted animals," so she wasn't running a animal shelter. She does not "regularly offers to the public the service of boarding dogs or cats or both for a fee," so she isn't running a boarding kennel.

    Plus, the argument that laws shouldn't be enforced in extraordinary circumstances isn't really much support for the argument that they shouldn't be enforced in ordinary circumstances. Nothing in the current immigration debate is at all analogous to the approach of Hurricane Florence. Congress was aware of all of the factor Ilya Somin cites when it drafted the current immigration laws, which is why there are provisions addressing those issues.

  • croaker||

    Which is why Wayne County doubled down on the stupid and filed all these vet charges.

  • ReaderY||

    In general I agree at least partially with Professor Simon. No system of written laws can be expected to foresee all possibilities and contingencies, and there must necessarily be a gap, sometimes in both directions, between what's legal and what's right. For that reason, government officials have to act with discretion, common sense, and mercy.

    Concepts like discretion and common sense have been under significant attack in recent decades. There has been a perception in secular liberal circles that human beings are essentially depressed, so subject to racism, sexism, corruption, etc. that if they were allowed to think for themselves it could only lead to oppressing people. Only formal rules can restrain humanities innate tendency to evil.

    But any functional system of government that makes any attempt at being just must allow for a measure of judgment to sometimes override the rules, entrust leaders to exercise that judgment, and take the risk that they will abuse it.

  • ReaderY||

    In this particular case (and I understand Professor Somin's comments are intended more generally), there are probably defenses available, for example the common-law defense of necessity.

    One reason for having a common law and doctrines like equity is to take advantage of hundreds of years of societal experience to develop exceptions and allow for situations that framers of statutes may not foresee.

  • JoeGoins||

    We have a law problem, not an enforcement problem (which is what I assume is the point of your article).

  • apedad||

    Republican logic:

    I support law enforcement (Stand for the FLAG and BLUE LIVES MATTER!!) vs. Cops and Prosecutors are BAD.

    smh...

  • apedad||

    As a Democrat and a retired federal agent, I can tell you and the world: you are a clueless idiot.

    That is all.

  • apedad||

    Deep State ... **chuckle**

    Here, read this (spaces added): https://www.theatlantic.com/health /archive/2012/09/tin-foil-hats-actually- make-it-easier-for-the- government-to-track-your-thoughts/ 262998/

    If you're going to be whacked, you might as well go all the way.

  • Eddy||

    The media is very powerful, for good or for evil. At their best, they can counteract the influence of (hypothetically) local courthouse gangs with their own agendas. So you can't live with the media nor live without them.

    It depends on how zealous a particular news outlet is for the truth.

  • Eddy||

    Whenever I'm inclined to dismiss the media, I remember how often govt or corporate officials strangely stop doing something bad when they learn that reporters have been asking questions.

  • Scarecrow Repair & Chippering||

    The problem is not media busybodies poking into government misdeeds; it is media busybodies being much too passive when they agree with the government misdeeds.

  • Eddy||

    If there's really a case where it seems that applying the law would cause unjust results, why not step back and check one's premises?

    Do the facts really show a clear-cut violation, or are there more charitable interpretations?

    Is the law as clear as all that, or are there loopholes - like construing vague provisions in favor of the suspect ("rule of lenity," I think it's called).

    Was there some kind of necessity justifying the otherwise-illegal action?

    If the problem is anticipated in advance, are there lawful ways of fixing the problem to which you can alert the public?

    Has the government awarded enough money to local enforcement that they don't have the option of triage, but have to pursue all cases? After all, a decision to underfund law-enforcement is necessarily a decision to leave some laws unenforced.

  • Eddy||

    Re the final paragraph: When law-enforcement engages in triage, do they drop the less-urgent investigations, or do they play political games and try to extort more funding by announcing that "gosh, we're going to have to stop investigating burglaries" - while at the same time devoting massive amounts of money to (say) undercover stings at massage parlors?

  • Eddy||

    I'd say local media should be on the lookout for Washington Monument Strategies when they start hearing protestations that "we have to enforce the laws as written."

    Because usually a jurisdiction is going to run out of money before it runs out of laws to enforce. There will have to be some selection principle at work.

  • WJack||

    Of course the laws on the books should be enforced, lack of mens re is, or ought to be a complete defense. Only Somin could stretch the circumstances here to excuse illegal border crossings.

  • Ben of Houston||

    There is an extreme difference between extreme need and the greater good, which is a well recognized historical exception to essentially every law (case in point: the oldest and most important of all laws, homicide, is legal in war or self defense because its an extreme circumstance) compared to policies that essentially mean laws only exist in certain circumstances.

    In marijuana and illegal immigration, we have gotten to the point that states are licensing people for actions that are illegal on a federal level. Growing and selling marijuana is a federal offense. However, it is licensed by many states. Illegally being in the country is grounds for being carted off at any time. However, California is licensing illegals to drive and even discussing granting them the vote. That just makes the law into a joke.

    This article is clearly about a case of the government ignoring long held legal principles concerning emergencies. This is not in any way equivalent to ignoring other long held legal principles such as "the law actually matters".

  • Tall Paul||

    There are clearly some occasions when it would be foolish or unjust to enforce the letter of the law. But those cases are few and far between, especially when illegal immigration is involved.

  • dwshelf||

    I'm not following the logic here.

    Somin makes a case that one law should go unenforced, thus he gets to pick from all other laws and select a few more not to enforce?

    A better analogy would exist if he cited an individual case of one illegal border crosser and argued that this immigrant should be allowed to return home without prosecution.

    Or even broadly, that illegal border crossers should be allowed to return without prosecution.

    But Somin does not give reason that having cared for hurricane distressed dogs entitles one to run an ulicensed pet shelter in perpetuity.

  • MatthewSlyfield||

    "Somin makes a case that one law should go unenforced, thus he gets to pick from all other laws and select a few more not to enforce?"

    No, that's not the case he makes at all.

    Here is the case that he is making:

    Even the best laws can produce unjust results under some circumstances.

    When enforcing the law creates injustice, the law should go unenforced.

    "But Somin does not give reason that having cared for hurricane distressed dogs entitles one to run an ulicensed pet shelter in perpetuity."

    Neither has he stated or even remotely implied that it should.

  • Bob from Ohio||

    "When enforcing the law creates injustice, the law should go unenforced."

    Who decides that? And what is "injustice"?

  • dwshelf||

    Somin makes an analogy to immigration law, but he's not suggesting a momentary lapse in enforcement. He's suggesting that the lapse be ongoing, every day for the remainder of the illegal immigrant's life.

    Somin's point would be valid if he suggested not prosecuting most people who illegally cross the border; such enforcement indeed seems analogous to enforcement of animal shelter laws in the present case. Where he goes into the weeds is suggesting permanent indulgence.

  • Perseus`||

    The analogy to illegal immigration, which is what Somin is really pushing, doesn't work at least in the U.S. In virtually no instance is the U.S. the closest reasonably safe harbor for those facing violence or oppression. There are plenty of other places within their own country or in immediately neighboring countries (and if it involves large scale violence the best solution is usually to keep them as close to their native territories as possible). That in fact is what happened with the animal shelter, which was set up as temporary shelter near the disaster, not thousands of miles away as a permanent shelter. If there is such a large need, then the proper mode is for Congress to change the law as it has done in the past.

    Of course, most people illegally immigrating to the U.S. are economic refugees, and Somin's position is that people have a right to select the most prosperous location to become a permanent squatter. Congress has repeatedly failed to change the law in this regard, so that by itself is reason enough for the executive "to just enforce the law" as is.

  • ReaderY||

    Having said all this, there is a big difference between traditional discretion and defenses like necessity, on the one hand - breaks for unusual circumstances, first offenders, and the like that result in breaks at the margins - and civil disobedience, flat out refusing to enforce a law in toto because one disagrees with it.

    If Professor Somin is using the first as evidence but is really arguing for the second, I'd agree they are two different things and have to be approached differently.

    In the North Carolina case, it's the first. The individual never attempted to set up a permanent animal shelter. And if she had, there are legitimate reasons why animal shelters, which if run too amateurishly could end up becoming havens for deadly diseases, need inspections and other oversight that comes with registration and submission to a regulatory regime.

  • Andrew Hyman||

    If Sauls is sworn to faithfully execute the laws, then he is obliged to faithfully execute the laws. This is why the Governor of North Carolina has pardon power.

    And if the law in question needs to be amended so this type of situation does not recur, then that is why the legislature of North Carolina exists. It would be unsafe, unconstitutional, and unwise for low-ranking officials like Mr. Sauls to arrogate unto themselves the powers of North Carolina's governor and legislature, while breaking their paths of office, IMHO.

  • Andrew Hyman||

    paths >> oaths

  • Eddy||

    I would imagine it's now in the lap of the criminal justice system.

    And I did a random search and found this press release about an initiative, including local cops and judges, to refer fewer juvenile criminals to juvenile court.

    https://bit.ly/2MXnsKB

    They talk about the harmful results of juveniles getting prosecuted (a good argument not to commit crimes, but I digress) - shouldn't this sort of argument be directed toward the governor with his pardon power?

  • Bob from Ohio||

    "This is why the Governor of North Carolina has pardon power."

    Exactly. Our system determines that executive clemency decides when application of the law is unjust.

    Its dangerous to have "injustice" determined at the initial level. After all, white southern sheriffs and prosecutors often thought it unjust to arrest whites for killing blacks.

  • Eddy||

    Numero uno, I've shown a press release where govt people in Wayne County *boast* about not prosecuting youthful troublemakers. So it's no longer a question of selective enforcement vs. full enforcement, but instead a question of giving well-meaning cat ladies the benefit of some of the same selective enforcement already given to young hooligans. Unlike a young hooligan, an older cat-lady can't rely on her record getting sealed, or having social workers concerned about the stigmatizing effect on a criminal conviction.

    Numero two-o, the Jim Crow sheriffs violated the law, they weren't just misusing discretion - racial discrimination being a form of "discrimination" specifically forbidden by law, plus the other legal violations involved in railroading innocent black people on the one hand, or turning a blind eye to lynchings on the other hand. (Or intentional racial disparities in sentencing, by which I mean *consciously* deciding to have a dual racial standard of justice)

    Numero three-o, unless there's full funding for local authorities to go after *all* crimes, then of necessity they'll have to triage. If we see a county where suddenly there's no budget for dealing with young hooligans but plenty of budget to throw the book at harmless cat ladies for running an emergency shelter, then I don't think the cat ladies would be impressed by "teh law is the law" rhetoric.

  • Eddy||

    Numero four-o, if NC is like other states, the governor can only grant pardons after conviction, so the person who fights the charges will have to postpone any pardon applications until after (s)he loses.

  • Eddy||

    Here is where I prefer the federal system, where the Pres has the power to stop any prosecution at any time (except in cases of impeachment), without being forced to wait for "the process is the punishment" style harassment.

  • Eddy||

    (or he could simply send a friendly reminder to the U. S. attorney that the Pres can fire him - and then we'll see the U. S. Attorney's zeal for Teh Rule of Law shrivel up and get replaced by a focu on mercy)

  • ||

    It's very simple: the average American did and does not want his country filled with tens of millions of illiterate third world Hispanics. To the extent that it's happening, it's happening against the will of Americans.

  • David Brayton||

    It seems to me that the biggest problem with leaving discretion to prosecutors and police officers is that they are much more lenient when the defendants are just like them. In other words, white prosecutors go easier on white defendants than black or Hispanic defendants.

    This unconscious bias is endemic at EVERY phase of the system, from the investigation stage, through plea bargaining (it's the rare case that actually goes to trial) to parole to clemency. It has created a terribly racist and unjust system. Radley Balko just released an extensive article on the iniquities of our justice system. After reading it, only folks like Rush Limbaugh and Alex Jones would think a black person can get a fair shake from the 'justice' system.

    I'm kinda surprised this wasn't discussed by Mr. Somin in his post. It really is the huge elephant in the room.

    I'm not arguing that Tammie Hedges should be prosecuted. She sure as hell shouldn't be! And this prosecutor should be fired or voted out.

  • Hue White||

    Those who would simply the law without regard to context should give more thought to how and why we apply important exceptions to general laws.

    http://huewhite.com/umb/2018/0.....al-system/

  • Rossami||

    This entire article starts from the wrong premise. When "just enforce the law" is offered as an argument, it's almost never an absolutist "the law is right" argument. Rather, that call is made to rebut those who are clamoring for yet more laws being proposed on top of the laws that are already not being enforced.

    For example, the people arguing "just enforce the law" in the gun control debate are invariably the people opposing new restrictions. They argue (with more than a little justification) that making new things illegal will do little good when we won't even reliably prosecute the things that are already illegal.

  • ||

    The fact that almost nobody caught lying on a 4473 is prosecuted is great evidence that the point of gun control laws is to harass law abiding whites.

  • EscherEnigma||

    And how many "just enforce the law" types approve of folks going to the courts to have bad laws struck down?

    I seem to recall reading a great many comments about how the way sodomy laws, adoption bans, and marriage bans were struck down was the "wrong way to do things".

    So I'll have to beg forgiveness for never trusting "just enforce the law" types.

  • ||

    The way to get a bad law repealed is for the legislature to repeal it. Not for 5 unelected judges ruling that the Constitution protects the right to stick your penis into a man's butt.

  • Thomas O.||

    If Congress and all state legislatures were actually able to vote on every proposal they got, I would agree with the "by-the-book" route. But, there's filibusters. There's committees that sit on bills indefinitely. There's lawmakers in gatekeeper positions that have the power to singlehandedly bring bills to a screeching halt. There are legislatures that have a very limited amount of time to do the entirety of state business (I'm looking at you, Texas), which means "running out the clock" is a political tactic.

    In a perfect world, a proposed bill - or law repeal - would always get a chance to be voted on by the legislative body. But, the crapsack political process that we have means that the judicial branch voiding a bullshit law would be the better option.

  • ||

    The way to get a bad law repealed is for the legislature to repeal it. Not for 5 unelected judges ruling that the Constitution protects the right to stick your penis into a man's butt.

  • EscherEnigma||

    See what I mean? I can't even tell if this is supposed to be a parody account because that's exactly what sincere folks have said.

    To put it simply, folks like this don't care about justice, and have no concern over punishing folks that have wronged no one so long as it's done the "right" way.

    So whether ARWP is a parody account or not, they've perfectly illustrated my point. People that think you should "just enforce the law" don't care about justice.

  • FiftycalTX2||

    Every person that reads this story needs to contribute to fight this travesty of justice. I don't know who complained. Was it a local vet? Who knows. All I know is I sent them $50 to fight for justice. I don't know if the local govt has been taken over by socialist "can't cut the grass without a permit" types, but this CANNOT STAND!

    Give what you can.

    http://crazysclawsnpaws.wixsite.com/ccnp

  • gormadoc||

    "We'd like to see him reach out to her and push the reset button"

    Talk about a mixed metaphor with awkward consequences.

  • zchrykng||

    You can believe two things at the same time... that this is a stupid law and that it should be enforced 100%.

    If we let law enforcement decide how and when to enforce laws, laws are nearly meaningless. And if we don't enforce laws like this, people will never realize how many stupid laws are on the books and change will never happen.

    Personally I would like all the legislators start from scratch, like set a date where all current laws expire and they have until then to write new laws, and they have to vote on each and every one individually.

  • Eddy||

    "If we let law enforcement decide how and when to enforce laws"

    We *necessarily* have such a system whenever there isn't enough money in the budget to enforce all the laws.

    In that case local governments should, ideally, go through local crimes from most to least serious, prosecuting as they go, until they run out of money, at which point they collide with another fundamental constitutional principle - that only legislative bodies can appropriate money.

    Then they file a report on what they did - "we got a bunch of burglars, killers and rapists, some drunk drivers, some domestic abusers, but we ran out of money before we could get to the cat ladies."

  • zchrykng||

    I do realize that is how the system stands at the moment.

    I'm arguing that governments shouldn't pass laws that will never get enforced. The law should be a very narrow thing and all violations should be prosecuted.

  • hugh59||

    The state will come in and euthanize all the animals. They had to kill the animals in order to save them.

  • Eddy||

    "Why are all the Wayne County restaurants suddenly serving all this 'Mystery Meat'"?

    (Just a joke, just a joke)

  • EscherEnigma||

    You're confusing the state of North Carolina with PETA.

  • loveconstitution1789||

    The laws have to be constitutional.

  • EscherEnigma||

    Because that's such a clear and unambiguous standard.

  • TMLutas||

    Do militaries use dogs? Do militaries employ vets? She had a right to do this animal care under the 2nd amendment's preface clause.

    When the general fabric of civilization breaks down, a free society should never be condemned to barbarism when we can ad hoc substitute our labors to keep civilization going.

    The constitution covers this. Because the progressives hijacked that first clause in the second amendment (thankfully corrected by Heller), we have a good deal of security system conception cleanup.

    People instinctively know the right thing to do but don't assert their rights.

  • JonFrum||

    I come here for news about court decisions - important stuff. Unfortunately, the site also foists this sort of bizarre foolishness on us as well. Sometimes we shouldn't enforce the law, so when 'I' decide, we shouldn't enforce the law? This on a site dedicated to the law? This sort of anti-intellectual drivel really pulls down the standards of the site, and makes me wonder about the contributors.

  • TMLutas||

    The problem is that declarations of emergency should create certain suspensions of the rules. That's what they are there for. But the pettifoggers of the administrative state think that declarations of emergency do not apply to them. It's the administrative state that is defying the governor of the state of North Carolina.

    I find that defiance somewhat important.

  • WJack||

    JonFrum said: "Unfortunately, the site also foists this sort of bizarre foolishness on us as well." Nailed it.

    In Somin's defense he seems intuitively, rather than intellectually, committed to open boarders, i.e., globalism.

  • JeremyR||

    Apples and oranges. If she routinely did this for animals, it would be one thing. But it was an emergency.

    Most illegal aliens are not coming here because of an emergency, but simply economic reasons - free stuff from the government and to send money back home to their home country.

  • Bubba Jones||

    Wtf is wrong with NC?

  • Eddy||

    Now that Leonid Sirota's philosophical discussion has been added, maybe instead of talking about discretion, let's talk about either having a duty to enforce a given law in a given situation, or having a duty not to do so.

    We could start by ignoring laws which are unjust or unconstitutional, since these "laws" are really no laws at all. I see no discretion here - justice and the constitution (of the U. S. or Canada) are binding on the cops, who can't be exempt by legislative act from their duties to justice and the constitution.

    So once the cops compile a list of the duly enacted, just, constitutional laws, then be ready to confront the courts if the courts happen to have a different list. Go to prison rather than enforce an unjust or unconstitutional law. And don't resign either, because that would suggest that defending justice or the constitution are shameful things.

    With their list of duly-enacted, just, constitutional laws, the cops ask, "did the legislators give us enough money to enforce all these against all violators?" If no, then arrange the list based on the serious of the behavior the laws seek to repress, so that laws against murder should be moved to the top of the list and laws against jaywalking (though important for road safety) should be moved nearer the bottom.

  • Eddy||

    Then make sure there's at least enough money in the budget to deal with the murderers, robbers, rapists, etc. If there's money in the budget left over from the jaywalkers, fine, otherwise candidly confess to the public that, since cops can't appropriate money, only legislators can, they were forced to close down certain investigations because of the triage I've described.

    Then if prosecutors, courts or the legislators disagree with the cops' interpretation of their duties, fire/imprison them. Either the punishment of these cops will be just, in which case fine, or else it won't be just, in which case the cops will have the satisfaction of knowing they're suffering in a just cause.

  • M.L.||

    True enough. But one area of law that we need to enforce more strongly is immigration.

  • vek||

    Sure, in extreme cases it probably makes sense to ignore really dumb laws... But there is an argument to be made that 100% of enforcement of bad laws is also likely to lead to their repeal faster too. Whatever the case, one cannot let things become too willy nilly, because that way lies chaos. Rule Of Law is a real and important thing that should not be discounted. It is one of the MAIN things that makes the western world great, bad laws included.

    "I note above the example of immigration laws that used to deport people (including even escaped slaves) to places where they are likely to suffer oppression or even death."

    Here's the thing: If we didn't let so many people game the fucking system when they have ZERO legitimate worry of anything, other than not making as much money in the place they illegally immigrated to, then we would have a LOT more room for compassion in instances where REAL problems existed.

    The 11-20 million illegal immigrants that are here entirely for economic reasons make it harder for people to want to soak up even more low skill foreigners. Even most people who try to claim refugee status are full of shit and just want to move here for economic reasons. Economic reasons are not enough where we should give them carte blanche to break our laws.

    It all comes down to common sense at the end of the day, unfortunately it seems to not be that common...

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online