When Do You Enforce the Law?

There are different views of the role, purpose, and enforcement of the law. I take a pretty purist view. I think that laws should be enforced and, if there is no routine attempt to enforce them, they should be taken off the books.

But I recognize that there is another way of looking at laws. Some people look at laws as aspirational or, perhaps, admonitory in character. They are an indication of how we wish people would act but not necessarily how they will be required to act. In my opinion laws treated that way become arbitrary and are prone to abuse. There is a tendency to punish people you don’t like while turning a blind eye to infractions by people you do like.

For the last 80 years we’ve had a law on the books called the Hatch Act which limits what federal officials can and cannot do in their official capacity. One of the things it prohibits is political action, electioneering, or soliciting campaign contributions. It doesn’t apply to elected officials. It is rarely if ever enforced. I know of no case in which someone has been dismissed for violating it.

Consistent with my view I think that Kellyanne Conway should lose her job for violating the Hatch Act. Not for habitual violations of the Hatch Act because that’s not what the statute says but for violating it. I also thought that Julian Castro and that Kathleen Sebelius should have been dismissed for their violations of the Hatch Act.

Situations like the present kerfuffle illustrate why I believe what I do. I believe that violations of the Hatch Act are routine not the least because people realize they are rarely enforced. When you have a tolerant attitude towards Hatch Act violations, it inevitably leads to charges of selective prosecution when you do enforce it because it is selective prosecution.

5 comments… add one
  • PD Shaw Link

    Since punishing Conway would probably do nothing to address the rule of law issue (it would still be selectively enforced), I think the law should be repealed, or better yet, revised to be consistent with the norms we want to enforce. And frankly, I was surprised Conway was not in an exempt position, Counseler to the Presidents appears to be a political position.

  • Every time you turn over a rock in the federal government quite a few critters crawl out. The Hatch Act isn’t the only problem. The entire civil service is a problem. The number of political appointees is a problem. The roles of political appointees is a problem.

  • steve Link

    I am not quite such an absolutist. I can see where the rules on the Hatch Act can be difficult to be sure about. Personally, I would give them one infraction, then boot them. If you arent willing to do that, then get rid of the law.


  • That would be okay if you caught 100% of the infractions. I think that catching 1% of the infractions is more typical or, more precisely, you’ll catch 10% of the infractionists 10% of the time and 90% of the infractionists 0% of the time.

  • steve Link

    Given social media today and the omnipresence of smartphones, I am actually betting that very little goes un-noticed. We have many examples of politicians thinking they were talking and not knowing they were being recorded.


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