From unfair to tragic: Consequences of not enforcing the law

It is in many ways the least exciting part of the public policy making process. When a law is passed, presidents or governors and Congress or legislatures are paying attention, and as a result, so does the media. Even agency regulations written to implement the laws passed by the political branches of government have become increasingly prominent over the past decades.

But enforcement is where the rubber hits the road.

Enforcement is where most of us have our main interaction with the government. Whether it is getting our driver’s license renewed, meeting with your child’s favorite (or least favorite) teacher, or getting pulled over for driving too fast, it is these “street level bureaucrats” who form our main impression of the state.

Sometimes, enforcement of the law does grab national headlines. Most frequently these examples are interactions between the police and the public. Over the past few years these stories have involved police officers abusing their enforcement discretion particularly when it involves suspects who are members of racial minorities. The George Floyd case is the most famous of a set of examples that has become all too common. These stories have been so prominent that we equate the term “law enforcement” with the actions of police officers.

But enforcement of the law stretches far beyond policing.

Two recent examples show the importance of enforcing (or not enforcing) the law in other contexts. In the tragic collapse of Champlain Towers South in the Miami, Fla., suburb of Surfside, reports have emerged that required repairs to the building had been delayed. Throughout southern Florida, inspections of buildings to examine their compliance with building code regulations were years behind schedule. There is no way of knowing whether even minimal enforcement of the law would have prevented the Surfside tragedy, but the mere possibility that it might have shows the importance of paying attention to law enforcement in all of its contexts.

Tax law is in many ways different than housing code regulations. But it is similar in that without enforcement, the laws written down on pieces of paper are meaningless.

The Biden administration has recognized this in proposing a massive increase in funding for the Internal Revenue Service. For years, wealthy taxpayers have skirted the law and one study has concluded that returning enforcement of tax law to historic norms could mean an increase of $1 trillion for the federal government.

Enforcement of the law inevitably involves judgement on the part of the street level bureaucrats. Abuse of that discretion to enforce the law with excessive force or strictness has led to the many horrific cases of abuse of criminal suspects over the past decade. Abuse of that discretion to enforce the law in too lax a manner (or insufficient funds to conduct enforcement) can lead to building collapses and trillion dollar increases in our national debt.

The Trump administration tightened enforcement of immigration laws and winked at abuses by the police. At the same time when the laws would dictate punishments for corporations or white collar criminals, the Trump administration was fine with enforcement that was lax. The Biden administration is reversing both of these trends.

Ensuring the “right” level of enforcement is no easy matter. It requires supervision and attention of elected officials and their top appointees — perhaps as much attention as they give to actual policy-making. It requires funding (as the Biden administration seems to realize in the case of tax enforcement). It requires sending a consistent message across policy areas that laws and regulations not only restrain private action but also place limits on what the government can and cannot do in implementing those restraints.

Enforcement by the state without regard to laws and regulations is a hallmark of a totalitarian regime. But laws and regulations without fair and meaningful enforcement are just symbolic pieces of paper that erode confidence in government.

Getting the balance right in all areas of enforcement is critical.

Stuart Shapiro is professor and director of the Public Policy Program at the Bloustein School of Planning and Public Policy at Rutgers University, and a member of the Scholars Strategy Network. Follow him on Twitter @shapiro_stuart.