This is a subject I've been thinking a lot about, so forgive the length of this comment. I also am not sure I'm entirely in agreement with you, but I think it raises interesting and important philosophical questions about the rule of law.
Here in New York, there is, as a technical matter, a mandate requiring passengers to wear masks on mass transit. Indeed, there are billboards plastered on the subway instructing people to do so. (This has some odd results. According to the law as written, you're required to wear a mask at LaGuardia, which is operated by the Port Authority, but you're free to take it off as soon as you board the aircraft. In Penn Station, if you hop on board the Long Island Railroad, you're aboard an MTA train and a mask is required; if instead you get on a NJ Transit train on the other side of the platform, no mask is required. And even weirder, a trip from Penn Station to Newark Airport aboard NJ Transit does not require a mask; take the PATH train instead and a mask is required.)
In light of these confusing and contradictory rules (some of which—such as the mask mandate still in effect at LaGuardia and JFK, but not at Newark—are not at all clear to travelers), it is no small wonder, then, that the mandate is widely ignored by passengers, transit workers, and law enforcement officers alike. There has been no attempt at enforcement of any kind in 2022, meaning the mask mandate is enforced even less than speeding or jaywalking. It is, for all intents and purposes, a recommendation dressed up as a legal requirement.
What I find ironic about this is that the city itself has taken the position that "it's not illegal if it's not enforced," at least in some areas. Another billboard that you'll commonly see on the subway is a placard that says, "You must be 21 or older to legally use cannabis." Of course, cannabis is a Schedule I drug under the Controlled Substances Act and, therefore, under the Supremacy Clause, not legal at any age for any reason, regardless of what New York state law has to say about the matter. That said, the federal government no longer enforces the prohibition against marijuana, meaning we are in a regime where marijuana is, as a de facto matter, perfectly legal.
When a law is not enforced (particularly when its non-enforcement is, in the case of New York's transit mask mandate or the federal government's marijuana prohibition), that forms a gray area in the law. Is the law simply those words printed on the page? Or is it also the government's ability and willingness to enforce those words as well?
This gray area is not a good thing, which is why both New York's transit mask mandate and the federal prohibition on marijuana are bad laws. In the words of Stephen Carter, we should never "argue for invoking the power of law except in a cause for which [we] are willing to kill." The city and state government in New York has recognized that it is not willing to use violence to enforce its transit mask mandate; accordingly, it should get rid of the law. To do otherwise continually undermines the rule of law, because a society in which people can choose whether or not to follow the law is inherently a society in which laws are no better than recommendations. Such a society is not a law-abiding society.
Unfortunately, it is precisely because of widespread non-compliance that the government has (I believe) chosen to simply do nothing. It is easier to simply keep the law on the books and not enforce it, thereby ensuring that if it ever felt the need to enforce it again (e.g., a particularly deadly new variant arrives), it could do so without the political cost of re-implementing a widely despised mandate.
Of course, the non-compliance has greater costs than forcing the particularly scrupulous to wear a mask on the A train. Individuals may feel free to disregard the law in the same way that individuals speed, jaywalk, and park in front of fire hydrants. But institutions tend to be more scrupulous about following the law, even if it won't be enforced (perhaps out of a repetitional concern). For example, there remains in place in NYC a prohibition on employing anyone (other than professional athletes) who is not vaccinated. The law is written so broadly, though, that an unvaccinated congregant is unable to serve as an usher or greeter at church (though they are welcome to attend, unmasked). Again, inertia seems to have prevented the government from removing this law, even though the mayor has chosen not to enforce it.
There is a slightly different, albeit related, question about how to approach a law that is enforced. Suppose a citizen is perfectly fine with the consequences of breaking the law. What then? (To be clear, I'm not thinking of malum in se offenses, but malum prohibitum offenses, recognizing that the distinction between the two isn't always clear.) For example, everyone is legally required to get health insurance under the ACA—except that there's no penalty anymore. Indeed, the legislators in the TCJA set the penalty to $0 precisely to remove (as a de facto matter) the legal requirement, even though the law remains on the books. Must I still get insurance? And when there was a penalty, what of the people who decided the penalty was worth it? Here's another example. In New York City, if I don't move my car for street cleaning each week, I get a $60 ticket. But parking the car in a lot where I don't have to move it will cost me upwards of $400 per month, making the $60 weekly ticket cheaper than parking it in the lot. If an offense is a malum prohibitum offense and the cost of the offense is a cost I'm willing to bear, is it still a law I ought to follow?
On the laws that aren't enforced, though, I think this is a dangerous tendency in our society—it is the tendency for government to simply decline to use its power to enforce the law when confronted with a law that it no longer believes is worth the cost of enforcing, either because the law itself is unjust or its enforcement is simply overly burdensome and government resources are better spent elsewhere. (One can think of a host of examples, from enforcement of immigration laws to abortion laws to Covid-era pandemic laws.) In my view, the better solution—the one that views rule of law as a social good—would be to continue to enforce the law and advocate for its removal.
But as a citizen, there is a slightly different question—a question to which I don't have a good answer. Is it my job to obey the law as it is written (i.e., the position that reflects the legislative text), or is it to obey the law as it is enforced (i.e., the position that reflects the view of the government)? Which position better reflects being "subject to the governing authorities"?
Your comment is longer than my initial post! But I'm only kidding--these are all great thoughts. A few comments in response:
- Both your comment and Dan's below remind me that one of the confounding challenges to public discourse on this issue is the degree to which laws, policies, transmission and hospitalization rates, and personal experiences varied between different regions of the country.
- Your examples of unenforced laws in NYC provide a helpful contrast to those we experienced in the St. Louis region. When the attorney general sued, state and local policymakers in our region defended against the lawsuit and quite publicly stated that these mandates remained essential in the interest of public health. That to me creates a situation different than NYC's current mass transit policy and different than something like a jaywalking restriction. We don't have public officials holding press conferences urging citizens to follow anti-jaywalking laws because of an exigent public health crisis; in contrast, during the mask mandates, we had those press conferences repeatedly. If the relevant public officials were wrong, misleading, or grossly negligent in their representations, vote them out of office or demand other forms of accountability.
- As you note in your comment, my post focused mostly on institutional rather than individual actors. My intuition is that institutional leaders (especially those who lead institutions that serve impressionable children) have a greater obligation to follow the law or explain clearly why they are not following the law.
It's interesting that this topic has triggered more passionate comments than any of the previous. I'm a bit intimidated by the learned (as evidenced in their vocabulary!) comments by Jon and Dan, but, hey, I'll comment anyway. What I've been thinking a lot about recently is based on observations and experience here in the NJ shore town where we spend most of our summers. And what I've observed is municipal ordinances galore that are written with good reason, but generally ignored. For example, there's a lake near us which attracts water fowl--ducks and geese; there are signs posted around that body of water forbidding feeding of the water fowl. There's a board walk next to the beach; there are signs forbidding the riding of bikes during most hours of the day (it's permitted between 2 a.m. and 10 a.m.!). Both of these are violated on an ongoing basis.
As Jon and Dan have both suggested in their thoughtful comments, the proliferation of still more unenforced (and often unenforceable!) regulations--whatever the governing authority behind them--tends to undermine respect for the law and, really, respect for one another in our communities. As I've reflected on these (and other examples) at root I realize I'm less bothered by the illegality of the violations of these prohibitions than I am by the general lack of concern for one's fellow citizens; in short, the increasing lack of common civility. The "nobody tells me what to do!" attitude.
Thanks, John. And I appreciate your flagging a dimension of Jon's and Dan's comments that I hadn't addressed in my responses to them. Overregulation (or what we would call overcriminalization in the criminal context) is a serious problem. It leads to the symptoms you've identified; it also hurts society in all kinds of other ways, e.g., the war on drugs. I recommend Bill Stuntz's The Collapse of American Criminal Justice for further reflection: https://www.amazon.com/Collapse-American-Criminal-Justice/dp/0674051750.
Sadly, I already have too many unread books on our shelves. However, I did look at the Amazon blurb on Stuntz's book...This caught my eye: "The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced ... "
I've served twice on juries; once in a criminal trial that went to a decision by the jury; once in a civil trial (medical malpractice) that ended up without a verdict when the plaintiff was caught in a major and central untruth that undermined her whole claim......In both cases, especially the criminal trial, I came away with a deeper respect for the trial system, for the responsibilities of lawyers on both sides, and (importantly) for the important role a jury plays. Also, interestingly, I came to appreciate the refrain that defense lawyers are fond of, that there's a significant difference between "probably guilty" and "guilty beyond a reasonable doubt." We ended up acquitting our defendant on one of the charges (while convicting on several others); acquitting on one because there was too much room for reasonable doubt on that one, even though we all agreed it was "probable."
My own experience aside, I've also overheard "good citizens" in the larger room where we all assemble prior to voice dire, voicing their disdain for the process, bragging about how clever they are in answering questions in ways that get them excused, ridiculing "only the stupid people" who end up being selected. I am sure that in small town America, in years gone by, it was viewed as part of one's civic responsibility. At least that's my hope.
That jury trials are increasingly a thing of the past is a sad commentary. I'm curious whether surveys have been done on this subject (attitudes toward jury duty on the part of the citizenry), as well as on the general erosion of trust in the courts, the judges, the legal profession.
Now that I've written that, maybe I'll get Stuntz's book after all.
It seems to me that there is a difference between a "law" passed by a legislative body and signed by an executive (President, Governor, etc.) and a "mandate" issued by executive order. In New Jersey, where I live, the loudest outcry and strongest resistance came against executive orders, such as the one that made businesses remain closed unless they were large warehouses (which could claim to follow distancing guidelines) or casinos (which apparently provided too much state tax revenue to be shut down for long). These orders, not approved by the state legislature, were less clearly supported in the state constitution.
As a citizen, I find it far more hazy to understand what my obligation is to such decrees. If a random crackpot on the street tells me I need to shut my business down, I can safely ignore him. If the state legislature passes a law saying I need to shut my business down, I understand that their mandate has power and authority. If I ignore the latter, I appreciate that there are greater consequences than if I ignore the former. What we had in 2020-2021 was a set of people in duly elected positions making the rules in a way completely contrary to the way we're used to the rules being made. It was unclear to many whether these people even had the authority to make rules in this way. Disobedience, whether in the form of Florida schools requiring masks when their governor said they could not do so or in the form of New Jerseyans walking in a county park when their governor told them they could not do so, wasn't running afoul of the law; it was running afoul of a man and his edict. Whether that man was a general leading his people safely from grave and unprecedented danger by "following the science" or a despot seizing an opportunity to brandish unexpected power was a question whose answer was less than universally agreed upon.
A few questions:
1) Is there a distinction, in your mind, between the authority of law (as passed by a legislature in accordance with a constitution) and the authority of an executive order?
2) If there is a distinction, and if the citizen cannot discern whether the mandating party has the authority to issue the mandate, how is the citizen to respond? Obey anyway? Follow their conscience?
Thanks, Dan. Your first question is complicated by fact-specific questions of delegation. If the legislature has properly delegated decision making authority to the executive, then the executive is the proper legal authority to issue those decisions. Think, for example, of Congress delegating authority to the Department of Defense to issue certain defense-related regulations. If "a man and his edict" is a properly elected or appointed official who has properly been delegated decision making authority for that edict, then it is still law.
The delegation of authority is not always legally obvious. In St. Louis County, the initial mask mandate was challenged on these grounds (that the issuing authority was not legally authorized to issue the mandate), a court upheld the challenge, and the County then reissued a different mandate from a different (and legally authorized) authority. That makes sense to me.
In your case, if you weren't sure if an executive order rested on properly delegated authority, you could sue on the grounds of improper delegation and see if a court agreed with you. But as a private citizen (and just spitballing here, not offering legal advice), my sense is that you would want to: (1) comply with the order unless and until a court invalidated it; or (2) obtain a legal opinion (from a lawyer licensed in your jurisdiction and bound to the ethical obligations of the bar) advising you that it is okay not to follow the order; or (3) engage in express and open civil disobedience.
If it turns out that the executive issuing these orders was wrong, negligent, or obfuscating, the proper recourse is to use the political process to vote him out (or in extreme instances of abuse, see if civil or criminal remedies are possible).
This is a subject I've been thinking a lot about, so forgive the length of this comment. I also am not sure I'm entirely in agreement with you, but I think it raises interesting and important philosophical questions about the rule of law.
Here in New York, there is, as a technical matter, a mandate requiring passengers to wear masks on mass transit. Indeed, there are billboards plastered on the subway instructing people to do so. (This has some odd results. According to the law as written, you're required to wear a mask at LaGuardia, which is operated by the Port Authority, but you're free to take it off as soon as you board the aircraft. In Penn Station, if you hop on board the Long Island Railroad, you're aboard an MTA train and a mask is required; if instead you get on a NJ Transit train on the other side of the platform, no mask is required. And even weirder, a trip from Penn Station to Newark Airport aboard NJ Transit does not require a mask; take the PATH train instead and a mask is required.)
In light of these confusing and contradictory rules (some of which—such as the mask mandate still in effect at LaGuardia and JFK, but not at Newark—are not at all clear to travelers), it is no small wonder, then, that the mandate is widely ignored by passengers, transit workers, and law enforcement officers alike. There has been no attempt at enforcement of any kind in 2022, meaning the mask mandate is enforced even less than speeding or jaywalking. It is, for all intents and purposes, a recommendation dressed up as a legal requirement.
What I find ironic about this is that the city itself has taken the position that "it's not illegal if it's not enforced," at least in some areas. Another billboard that you'll commonly see on the subway is a placard that says, "You must be 21 or older to legally use cannabis." Of course, cannabis is a Schedule I drug under the Controlled Substances Act and, therefore, under the Supremacy Clause, not legal at any age for any reason, regardless of what New York state law has to say about the matter. That said, the federal government no longer enforces the prohibition against marijuana, meaning we are in a regime where marijuana is, as a de facto matter, perfectly legal.
When a law is not enforced (particularly when its non-enforcement is, in the case of New York's transit mask mandate or the federal government's marijuana prohibition), that forms a gray area in the law. Is the law simply those words printed on the page? Or is it also the government's ability and willingness to enforce those words as well?
This gray area is not a good thing, which is why both New York's transit mask mandate and the federal prohibition on marijuana are bad laws. In the words of Stephen Carter, we should never "argue for invoking the power of law except in a cause for which [we] are willing to kill." The city and state government in New York has recognized that it is not willing to use violence to enforce its transit mask mandate; accordingly, it should get rid of the law. To do otherwise continually undermines the rule of law, because a society in which people can choose whether or not to follow the law is inherently a society in which laws are no better than recommendations. Such a society is not a law-abiding society.
Unfortunately, it is precisely because of widespread non-compliance that the government has (I believe) chosen to simply do nothing. It is easier to simply keep the law on the books and not enforce it, thereby ensuring that if it ever felt the need to enforce it again (e.g., a particularly deadly new variant arrives), it could do so without the political cost of re-implementing a widely despised mandate.
Of course, the non-compliance has greater costs than forcing the particularly scrupulous to wear a mask on the A train. Individuals may feel free to disregard the law in the same way that individuals speed, jaywalk, and park in front of fire hydrants. But institutions tend to be more scrupulous about following the law, even if it won't be enforced (perhaps out of a repetitional concern). For example, there remains in place in NYC a prohibition on employing anyone (other than professional athletes) who is not vaccinated. The law is written so broadly, though, that an unvaccinated congregant is unable to serve as an usher or greeter at church (though they are welcome to attend, unmasked). Again, inertia seems to have prevented the government from removing this law, even though the mayor has chosen not to enforce it.
There is a slightly different, albeit related, question about how to approach a law that is enforced. Suppose a citizen is perfectly fine with the consequences of breaking the law. What then? (To be clear, I'm not thinking of malum in se offenses, but malum prohibitum offenses, recognizing that the distinction between the two isn't always clear.) For example, everyone is legally required to get health insurance under the ACA—except that there's no penalty anymore. Indeed, the legislators in the TCJA set the penalty to $0 precisely to remove (as a de facto matter) the legal requirement, even though the law remains on the books. Must I still get insurance? And when there was a penalty, what of the people who decided the penalty was worth it? Here's another example. In New York City, if I don't move my car for street cleaning each week, I get a $60 ticket. But parking the car in a lot where I don't have to move it will cost me upwards of $400 per month, making the $60 weekly ticket cheaper than parking it in the lot. If an offense is a malum prohibitum offense and the cost of the offense is a cost I'm willing to bear, is it still a law I ought to follow?
On the laws that aren't enforced, though, I think this is a dangerous tendency in our society—it is the tendency for government to simply decline to use its power to enforce the law when confronted with a law that it no longer believes is worth the cost of enforcing, either because the law itself is unjust or its enforcement is simply overly burdensome and government resources are better spent elsewhere. (One can think of a host of examples, from enforcement of immigration laws to abortion laws to Covid-era pandemic laws.) In my view, the better solution—the one that views rule of law as a social good—would be to continue to enforce the law and advocate for its removal.
But as a citizen, there is a slightly different question—a question to which I don't have a good answer. Is it my job to obey the law as it is written (i.e., the position that reflects the legislative text), or is it to obey the law as it is enforced (i.e., the position that reflects the view of the government)? Which position better reflects being "subject to the governing authorities"?
Your comment is longer than my initial post! But I'm only kidding--these are all great thoughts. A few comments in response:
- Both your comment and Dan's below remind me that one of the confounding challenges to public discourse on this issue is the degree to which laws, policies, transmission and hospitalization rates, and personal experiences varied between different regions of the country.
- Your examples of unenforced laws in NYC provide a helpful contrast to those we experienced in the St. Louis region. When the attorney general sued, state and local policymakers in our region defended against the lawsuit and quite publicly stated that these mandates remained essential in the interest of public health. That to me creates a situation different than NYC's current mass transit policy and different than something like a jaywalking restriction. We don't have public officials holding press conferences urging citizens to follow anti-jaywalking laws because of an exigent public health crisis; in contrast, during the mask mandates, we had those press conferences repeatedly. If the relevant public officials were wrong, misleading, or grossly negligent in their representations, vote them out of office or demand other forms of accountability.
- As you note in your comment, my post focused mostly on institutional rather than individual actors. My intuition is that institutional leaders (especially those who lead institutions that serve impressionable children) have a greater obligation to follow the law or explain clearly why they are not following the law.
It's interesting that this topic has triggered more passionate comments than any of the previous. I'm a bit intimidated by the learned (as evidenced in their vocabulary!) comments by Jon and Dan, but, hey, I'll comment anyway. What I've been thinking a lot about recently is based on observations and experience here in the NJ shore town where we spend most of our summers. And what I've observed is municipal ordinances galore that are written with good reason, but generally ignored. For example, there's a lake near us which attracts water fowl--ducks and geese; there are signs posted around that body of water forbidding feeding of the water fowl. There's a board walk next to the beach; there are signs forbidding the riding of bikes during most hours of the day (it's permitted between 2 a.m. and 10 a.m.!). Both of these are violated on an ongoing basis.
As Jon and Dan have both suggested in their thoughtful comments, the proliferation of still more unenforced (and often unenforceable!) regulations--whatever the governing authority behind them--tends to undermine respect for the law and, really, respect for one another in our communities. As I've reflected on these (and other examples) at root I realize I'm less bothered by the illegality of the violations of these prohibitions than I am by the general lack of concern for one's fellow citizens; in short, the increasing lack of common civility. The "nobody tells me what to do!" attitude.
Thanks again for a thoughtful blog, John.
Thanks, John. And I appreciate your flagging a dimension of Jon's and Dan's comments that I hadn't addressed in my responses to them. Overregulation (or what we would call overcriminalization in the criminal context) is a serious problem. It leads to the symptoms you've identified; it also hurts society in all kinds of other ways, e.g., the war on drugs. I recommend Bill Stuntz's The Collapse of American Criminal Justice for further reflection: https://www.amazon.com/Collapse-American-Criminal-Justice/dp/0674051750.
Sadly, I already have too many unread books on our shelves. However, I did look at the Amazon blurb on Stuntz's book...This caught my eye: "The rule of law has vanished in America’s criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced ... "
I've served twice on juries; once in a criminal trial that went to a decision by the jury; once in a civil trial (medical malpractice) that ended up without a verdict when the plaintiff was caught in a major and central untruth that undermined her whole claim......In both cases, especially the criminal trial, I came away with a deeper respect for the trial system, for the responsibilities of lawyers on both sides, and (importantly) for the important role a jury plays. Also, interestingly, I came to appreciate the refrain that defense lawyers are fond of, that there's a significant difference between "probably guilty" and "guilty beyond a reasonable doubt." We ended up acquitting our defendant on one of the charges (while convicting on several others); acquitting on one because there was too much room for reasonable doubt on that one, even though we all agreed it was "probable."
My own experience aside, I've also overheard "good citizens" in the larger room where we all assemble prior to voice dire, voicing their disdain for the process, bragging about how clever they are in answering questions in ways that get them excused, ridiculing "only the stupid people" who end up being selected. I am sure that in small town America, in years gone by, it was viewed as part of one's civic responsibility. At least that's my hope.
That jury trials are increasingly a thing of the past is a sad commentary. I'm curious whether surveys have been done on this subject (attitudes toward jury duty on the part of the citizenry), as well as on the general erosion of trust in the courts, the judges, the legal profession.
Now that I've written that, maybe I'll get Stuntz's book after all.
John,
It seems to me that there is a difference between a "law" passed by a legislative body and signed by an executive (President, Governor, etc.) and a "mandate" issued by executive order. In New Jersey, where I live, the loudest outcry and strongest resistance came against executive orders, such as the one that made businesses remain closed unless they were large warehouses (which could claim to follow distancing guidelines) or casinos (which apparently provided too much state tax revenue to be shut down for long). These orders, not approved by the state legislature, were less clearly supported in the state constitution.
As a citizen, I find it far more hazy to understand what my obligation is to such decrees. If a random crackpot on the street tells me I need to shut my business down, I can safely ignore him. If the state legislature passes a law saying I need to shut my business down, I understand that their mandate has power and authority. If I ignore the latter, I appreciate that there are greater consequences than if I ignore the former. What we had in 2020-2021 was a set of people in duly elected positions making the rules in a way completely contrary to the way we're used to the rules being made. It was unclear to many whether these people even had the authority to make rules in this way. Disobedience, whether in the form of Florida schools requiring masks when their governor said they could not do so or in the form of New Jerseyans walking in a county park when their governor told them they could not do so, wasn't running afoul of the law; it was running afoul of a man and his edict. Whether that man was a general leading his people safely from grave and unprecedented danger by "following the science" or a despot seizing an opportunity to brandish unexpected power was a question whose answer was less than universally agreed upon.
A few questions:
1) Is there a distinction, in your mind, between the authority of law (as passed by a legislature in accordance with a constitution) and the authority of an executive order?
2) If there is a distinction, and if the citizen cannot discern whether the mandating party has the authority to issue the mandate, how is the citizen to respond? Obey anyway? Follow their conscience?
Thanks, Dan. Your first question is complicated by fact-specific questions of delegation. If the legislature has properly delegated decision making authority to the executive, then the executive is the proper legal authority to issue those decisions. Think, for example, of Congress delegating authority to the Department of Defense to issue certain defense-related regulations. If "a man and his edict" is a properly elected or appointed official who has properly been delegated decision making authority for that edict, then it is still law.
The delegation of authority is not always legally obvious. In St. Louis County, the initial mask mandate was challenged on these grounds (that the issuing authority was not legally authorized to issue the mandate), a court upheld the challenge, and the County then reissued a different mandate from a different (and legally authorized) authority. That makes sense to me.
In your case, if you weren't sure if an executive order rested on properly delegated authority, you could sue on the grounds of improper delegation and see if a court agreed with you. But as a private citizen (and just spitballing here, not offering legal advice), my sense is that you would want to: (1) comply with the order unless and until a court invalidated it; or (2) obtain a legal opinion (from a lawyer licensed in your jurisdiction and bound to the ethical obligations of the bar) advising you that it is okay not to follow the order; or (3) engage in express and open civil disobedience.
If it turns out that the executive issuing these orders was wrong, negligent, or obfuscating, the proper recourse is to use the political process to vote him out (or in extreme instances of abuse, see if civil or criminal remedies are possible).