Arnold Kling  

Executive Nullification

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Bryan writes,


Obama's semi-amnesty for hundreds of thousands of illegal immigrants sounds like the best U.S. political news of the 21st-century.

I am less certain.

Even if you want open borders, I am not sure that this is how you want your goals accomplished. My reading of the policy is that the President is nullifying a law by refusing to enforce it. That is a precedent that could come back to haunt us.

I should point out that immigration laws already are very weakly enforced. In fact, when I drew up a list of legamorons (laws which, if they were rigorously enforced, would cause extreme disorder), immigration laws were number one on my list.

Perhaps you can think of the President's move as analogous to civil disobedience--it is a way of calling attention to a law you don't like. However, I think that civil disobedience is much more defensible for an ordinary citizen than it is for the President of the United States. Ordinary citizens need ways to publicize their opposition to laws. The President can publicize his opposition just by giving a speech.

In a better world, I would rather have seen the President give a ringing speech in favor of changing a law than announce an intent not to enforce it. Such a speech would be more consistent with separation of powers.

I would suggest having a broader discussion of how to address the problem of laws that many people neither want to repeal nor rigorously enforce. Having the executive nullify such laws one at a time may or may not be a good approach.



COMMENTS (9 to date)
joshua writes:

I'm not sure where I stand - I like Caplan's tweet about cheering when cops ignore speeding tickets but mourning rule of law on immigration - but I'm definitely cynical about the timing.

Too bad there's no clear pro-marijuana-legalization demographic Obama isn't struggling with.

Joe Cushing writes:

I'm kind of torn on this issue. For a long time part of me has wanted to see very strict enforcement of all laws--especially the stupid ones. I see lack of enforcement very dangerous to liberty and here is why....

When the authorities don't enforce laws because they are useless or maybe even counter productive, the people don't really notice so much that these laws are on the books. This allows more and more of these laws to accumulate over centuries because people aren't outraged. Eventually we loose the rule of law all together. Now there are so many laws on the books, the police can bring you in at any time because everyone breaks the law.

Long run lack of enforcement is the foundation of the police state. We already live in a world were --"show me the man and I'll find you the crime." (Lavrentiy Beria, Stalin's head of secret police.) is a reality.

Leaders in government can put anyone they don't like in jail using with this power.

Joe Cushing writes:

Oh and to Joshua

I'm very happy to point out that in Michigan, speed limits keep going up in more and more places. It started when the feds dropped the fuel saving speed limit and Michigan went to a 70mph rural freeway speed limit with a 65mph suburban speed limit. Then a few years ago the suburban speed limit was raised to 70mph. There are even places in the city limits of Detroit where one can drive 70mph. I love being able to do 70 right outside my home. Trucks were raised from 55mph to 60mph. A freeway connector where I got a ticket for going 65mph some time ago was raised from 55 to 65mph. More recently a divided highway near my home was raised from 50mph to 55mph.

I consider speed limits to be an important part of freedom because they are something that affect your happiness every day as you get in your car. When I look at possible places to relocate, I consider speed limits as a factor in my decision.

libfree writes:

Here is the biggest problem with not enforcing laws. Like the flip of a light switch, they can go back to enforcing those laws. The people that are breaking these stupid laws are still breaking the law. When someone decides to start enforcing them, they don't have to worry about Ex Post Facto coming into play.

Yancey Ward writes:

Libfree makes a valid point, and I think few if any will actually take advantage of the executive order because doing so would expose themselves explicitly to a rescission of the order in the future. Better to just remain silent.

I am less troubled by how this was done than Kling is, however. The people who wrote the Constitution have already provided for enforcement of legislative directives- it is up to Congress, or the people, to act or not act in this regard.

Also, I have a suspicion you will see more of this if the health care law is overturned in part or whole, but only if Obama is reelected in that case. I think the push against the Court in the media is in preparation for ignoring the ruling by issue of multiple executive orders. If the law is upheld, but Romney is elected, you will likely see the orders of nonenforcement go the other way. At some point, Congress will act to tip the balance of powers back into it's favor, but the Executive has been pushing it the other way for nearly a century.

Foobarista writes:

I agree with Joe Cushing. When I was in China, I realized that the system there is something like this: everything is illegal, but almost no laws are actually enforced. This matters for two reasons: the government can put you away whenever it wants because you've invariably broken some law or another at some point, and corrupt types can shake you down whenever they figure out you have something they want.

You either have laws or you don't. Have a very small number of them, strictly enforced.

libfree writes:

Yancey Ward makes a very good point as well. The executive is a kind of stop gap measure, a final means of protection from tyranny

Mike Rulle writes:

Completely agree. Basically wrote same comment in "Bryan's "extremely unjust law" argument, so won't repeat here.

Harun writes:

It doesn't sound so great if you personally spent time and money immigrating to America legally or if you lived somewhere not bordering America and didn't have the plane fare.

Seriously, would everyone be cheering if the government let left-handed people ignore EPA regulations?

I guess I am like Teddy Roosevelt and Sunday laws against beer - enforce all laws - if they are bad laws then change them.

Why is that so hard to understand?

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