The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.