Washington Post: Justice Sotomayor Unintentionally Highlights the Danger of Having Too Many Laws

December 12, 2017

"[I]f every governor enforced every law on the book, the state would be more than bankrupt. It would have no way of surviving…"

Via Washington Post:

During last week’s Supreme Court oral argument in Christie v. NCAA, an important federalism case, Justice Sonia Sotomayor noted a dangerous feature of our legal system. We have far more laws than the state and federal governments can effectively enforce:

[I]f every governor enforced every law on the book, the state would be more than bankrupt. It would have no way of surviving…

There are countless laws, and even laws that are in force, that are not enforced totally….

States make choices [about which laws to enforce] all the time.

Justice Sotomayor is absolutely right. At both the state and federal levels, we have so many laws that law enforcement officials can only target a small fraction of offenders; so many that the vast majority of adult Americans have violated state or federal law at one time or another. The executive therefore exercises enormous discretion about which lawbreakers to go after and which ones to leave alone.

This, in turn, has dire consequences for the rule of law in our society: It makes it very difficult for ordinary citizens to determine what laws apply to them and how to avoid violations, and ensures that whether a given lawbreaker gets prosecuted depends far more on the exercise of police, prosecutorial, and executive discretion than on any objective application of legal rules. Thus, the rule of law is in large part supplanted by the rule of whatever men and women control the levers of power at any given time. As Sotomayor notes, those people have vast discretion in deciding which of the “countless laws” on the books they want to enforce, and when.

Read more here.