Print

Crackdowns

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.

Sovereign Immunity and the Constitutional Text

Despite the opprobrium heaped on the Supreme Court’s modern doctrine of state sovereign immunity, there is a theory that makes sense of that doctrine, and also renders it consistent with the constitutional text. The theory is that sovereign immunity is a common law rule—a “backdrop”—that is not directly incorporated into the Constitution, but is shielded by the Constitution from most kinds of change.

That theory also has important implications for the future of sovereign immunity. The Supreme Court’s decision in Nevada v. Hall holds that state sovereign immunity need not be respected in another state’s courts. Last term, in Franchise Tax Board v. Hyatt, the Court nearly overruled Hall, and its future hangs by a single vote. The backdrop theory suggests that Hall is rightly decided, consistent with modern doctrine, and should not be overruled.

In Defense of the Secular Purpose Status Quo

The secular purpose rule, one prong of the Supreme Court’s interpretation of the Establishment Clause of the First Amendment, requires that government action be justified by a primary, genuine secular purpose. Government actions supported only by religious beliefs, therefore, are unconstitutional. A debate about the morality of the secular purpose rule has emerged, with the main arguments tending to view religious beliefs as either permissible or impermissible. This Note argues that rather than decide purely for or against the secular purpose rule, courts should maintain the current status quo, which is underenforcement of the rule.

To justify this approach to resolving the secular purpose debate, this Note analyzes common arguments made for and against the rule, and distills each argument to its core animating political value. The arguments against the secular purpose rule are motivated by the value of political access, while arguments for the secular purpose rule are motivated by the value of political legitimacy. Underenforcement creates equilibrium between these political values.

Some may worry that underenforcement will change the underlying meaning of the secular purpose rule. But a constitutional requirement can retain its full meaning and be legally binding even if underenforced. Another possible objection is that underenforcement would be tantamount to nonenforcement. To respond to that objection, this Note attempts to canalize underenforcement by marking out situations in which the secular purpose rule should be fully enforced. When, for example, underenforcement would allow discrimination against vulnerable groups, the secular purpose rule should be enforced. 

©Virginia Law Review Association. All rights reserved.