Our basic understanding of the functions of the executive branch of government, the one we are taught in elementary school, is that first and foremost, the President enforces the laws. Along with commanding the military, this is arguably the core function of the presidency.
Anyone who has ever worked in law enforcement knows that the job inevitably involves discretion. Do you pull over the driver going 32 mph in a 30 mph zone? Do you fine the business owner who forgot to fill out a line on a form? Enforcement agencies have only so many resources and they can’t possibly go after everyone who violates every line of the law. Nor should they.
How has the Trump administration used its discretion to enforce the law? Obviously immigration has been the area where the administration has most significantly increased enforcement. Arrests of undocumented individuals have surged across the country. In my state of New Jersey, we have seen Indonesian immigrants picked up by ICE agents while dropping their children off at school.
These immigration enforcement actions fall hardest upon individuals already struggling. Those who have come to this country to escape violence or destitution in their home countries, and are trying to make a better life for their children, have the most to fear from enhanced enforcement of the letter of the law in immigration.
So too, Trump has largely halted momentum to reform American drug laws; he speaks most frequently of upping already harsh penalties in this area.
Meanwhile, there are other areas of policy where the Trump administration has cut back severely on ensuring that the laws as written are followed.
Attorney General Jeff Sessions has cut back on the enforcement of civil rights laws and is reviewing Obama administration agreements with police departments on their treatment of African Americans.
Civil rights laws and protections for victims of police brutality are intended to foster equality before the law and in doing so safeguard those who are most likely not to receive equal treatment.
Regulatory policy is another area where enforcement cutbacks have been very noticeable. Most of these cutbacks have involved the policing of corporate compliance with laws regarding protection of the environment and public health.
For example, under the Trump administration:
l The Environmental Protection Agency has reduced the number of cases against polluters and the penalties against those found guilty of violating environmental law.
l The Occupational Safety and Health Administration, which already operates with an enforcement staff that can only visit worksites once every 70 years, has seen its enforcement workforce cut back further and has reduced the number of inspections of workplaces.
l The Department of Agriculture has blocked public access to the results of their “puppy mill” inspections, thus effectively neutering enforcement of animal cruelty laws.
Trump has touted his push to eliminate federal regulations — but even those that remain on the books are being more lackadaisically enforced.
By and large, the beneficiaries of regulatory policy are those of us who breathe the air, drink the water and work in dangerous workplaces. Decreased enforcement of these statutes helps the firms that don’t get visited by the government, and in many cases hurts the rest of us.
It is tempting to argue that every President has areas of the law where they emphasize enforcement and areas where there is benign neglect. But this is different. In the areas where previous administrations de-emphasized enforcement, they still made a big deal about following the law — and were often criticized for it.
The most notable example is that while President Obama was seen as soft on immigration enforcement in some circles, in others he was known as the “deporter-in-chief,” and he deported more people than any President that preceded him.
Republican administrations typically de-emphasize regulatory enforcement and bask in rhetoric about being “tough on crime.” But no administration has so quickly and simultaneously eased off on enforcement of laws that may impact the well-off and buckled down on enforcement of laws that affect the poor.
Why this emphasis? If the administration cared about freedom or liberty, they would scale back enforcement of all laws. If they cared about social justice or equity, they would take the opposite approach of the one they have taken.
One is forced to conclude that principles like justice, freedom or liberty — or a vision of the role of the state as large or small — is not what motivates this administration. Instead it must be something else.
Shapiro is a professor at the Bloustein School of Planning and Public Policy at Rutgers.
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