Sohoni on Executive Enforcement as Crackdowns (AdLaw Bridge Series)

by Chris Walker — Friday, Dec. 23, 2016@chris_j_walker

Over at Prawfsblawg, Orly Lobel features Mila Sohoni’s new article Crackdowns, which is forthcoming in the Virginia Law Review. Here is Professor Lobel’s take on the piece:

Crackdowns are administrative actions designed to increase enforcement in a particular area – such as taking a few weeks in which OSHA inspectors focus on janitorial services with surprise inspections. As someone who has studied the areas of enforcement and compliance – both top down command and control style, like crackdowns, and more collaborative new governance style private-public partnerships  (The Renew Deal; New Governance as Regulatory Governance – and also – specifically on regulatory partnerships in the context of workplace regulation – Interlocking Regulatory and Industrial Relations; Beyond Experimentation), I find Mila’s article very insightful in understanding the benefits as well as the risks of executive decisions to intensify traditional enforcement – including the risks of subverting democratic values and violating constitutional principles. The article is the winner of the AALS Section on Criminal Justice’s Junior Scholar Award as well as Honorable Mention in the 2017 AALS Scholarly Papers Competition.

And here is the summary of the article from the abstract:

The crackdown is the executive decision to intensify the severity of enforcement of existing laws or regulations as to a selected class of offenders or offenses. Each year, federal, state, and local prosecutors and agencies carry out thousands of crackdowns on everything from trespassing to insider trading to minimum-wage violations at nail salons. Despite crackdowns’ ubiquity, legal scholarship has devoted little attention to the crackdown and to the distinctive legal and policy challenges that crackdowns can pose.

This Article offers an examination and a critique of the crackdown as a tool of public law. The crackdown can be a benign and valuable law enforcement technique. But crackdowns can also stretch statutory authority to the breaking point, threaten to infringe on constitutional values, generate unjust or absurd results, and serve the venal interests of the law enforcer at the expense of the interests of the public. Surveying a spectrum of crackdowns from the criminal and administrative contexts, and from local, state, and federal law, this Article explores the many ways that crackdowns may quietly subvert democratic values.

The obvious challenge, then, is to discourage the implementation of pathological crackdowns, while also preserving the needed flexibility to enforce the law, within the context of a legal and political system that imposes sparse restraints on the crackdown choice. This Article locates a foundation for tackling this challenge in the requirement of “faithful” execution in Article II’s Take Care Clause and its cognate clauses in the state constitutions. The crackdown decision should be faithful — to statutory text and context, to the interests of the public, and to constitutional and rule-of-law values. By elaborating the content of this obligation, this Article supplies a novel normative framework for evaluating the crackdown — and a much-needed legal platform for governing it. Cutting sharply against the grain of modern law, this Article calls for a broad rethinking of the principles and constraints that should frame the Executive’s power to selectively and programmatically augment enforcement.

This is obviously an important topic — perhaps even more so when there is a change in administration and perhaps an accompanying change in enforcement priorities. Professor Sohoni’s article provides a helpful framing of the issues and outlines a number of the steps forward. I echo Professor Lobel’s recommendation that one should “download it while it’s hot.”

And if you’ll be at the AALS Annual Meeting in San Francisco in January, Professor Sohoni will be presenting her article on a panel on Thursday, January 5, 2016, at 8:30AM. I’ll also be presenting a current project, Legislating in the Shadows, on that panel.

 


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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