What If A Law Can't Be Enforced?
The discussions here about Arizona’s new attempt at enforcing immigration law have set me thinking about a more general question: What should we do as a body politic in a situation in which a law we have passed seems impossible to enforce?
In a sense, no law is enforced perfectly. Cannibalism is against the law, yet it does still, on rare occasions, happen that someone kills and eats someone else. We don’t generally describe this as the laws against cannibalism “not being enforced”. Rather we describe it as someone breaking the law.
When we talk about a law not being enforced, we generally mean that a lot of people are breaking it, and yet few of them seem to be suffering the consequences. Thus, although murders take place on a daily basis in our country, we generally do not hear complaints that no one is enforcing the laws against murder, since we at least see the police and prosecutors going through the process of trying to arrest and prosecute people for those crimes.
According to the criteria I’ve listed above, two obvious candidates for laws “not being enforced” would be our laws against narcotics and our immigration laws.
While staggering amounts of resources are devoted to enforcing both of these, most of us have known people who use drugs at least occasionally and seem to face no legal repercussions, and most of us have met a fair number of illegal immigrants who, by their presence, clearly have not been deported. When we turn to the news or to studies, we find our impressions supported with data showing that vast numbers of people use drugs and large numbers of illegal immigrants are in the country. This causes many people to conclude that these laws are not being enforced, or at least not enforced sufficiently.
But there are other laws which are flaunted at least as often (and have a far smaller percentage of infractions punished) than these laws which do not cause us similar levels of concern. For instance, speeding laws are routinely broken. Police often won’t even pull someone over unless he is going 5-10 mph over the limit, even though technically any speed in excess of the limit is an infraction of the law. And numerous speeders are never seen by a policeman. Another example is the drinking age. Sure, plenty of people are punished for violating the drinking age, but the number of times someone under 21 drinks beer or wine is vastly more. And frankly, most people really couldn’t care less if somewhere a 19-year-old is quietly having a single beer in the confines of his home or dorm room. In cases like the speed limit and the drinking age, people clearly aren’t concerned if many infractions go unpunished so long as the general norms they seek to enforce seem to be basically in place. (With the drinking age, it’s hard to see how even that is the case, but for whatever reason, it’s not considered a national emergency.)
I would argue that immigration and the drug laws actually have something in common with the drinking age and the speed limit in that truly enforcing these laws to the extent that 90%+ of infractions were punished would require such incredible excesses of an intrusive police state that we would consider the side effects worse than the cure.
Now, I’ll start with the less controversial examples: While I could support lowering the drinking age a few years, or raising the highway speed limits a little, I have no problem with those laws existing despite the fact they cannot be wholly enforced. Even with insufficient and at times inconsistent enforcement of these laws, there do serve a social function and value. Thus, in their regard, I think it’s okay to have laws which it is impossible to fully enforce.
But what of drug laws and immigration laws — laws which arguably deal with issues which can have graver impacts to society and to individuals?
While I understand the argument that the “war on drugs” has caused far more suffering than either legalization or lax enforcement would (since it creates a niche in which the drug cartels thrive) I must admit that I am also hesitant about the idea of legalizing drugs. Yet it’s hard to see how “we should fight harder” is the answer here. While I don’t feel bad about killing or jailing members of the drug cartels, our fighting them seems to enable them more than defeat them (perhaps because defeating one group just helps one of their competitors.)
With immigration, given that we have a 2000 mile land border with Mexico, plus access to both coasts by sea, it’s hard to see how any amount of resources spent on enforcement could truly stop illegal immigration from Mexico. The US is simply too attractive, and too many American employers are happy to not ask questions when it comes to hiring cheap labor. I’m sure that we could have better enforcement than at present, but there really is a limit to how good it could ever be. And yet, even as an advocate of far looser immigration restrictions, it’s hard to say, “We’ll institute better laws, but we’ll never be able to enforce them anyway.” Though even imperfectly enforced immigration laws surely have some utility. While imperfect enforcement benefits law breakers while disadvantaging those who follow the law, no immigration laws at all could clearly result in a much greater influx than we currently see.