Article

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.

Corporations, Unions, and the Illusion of Symmetry

Prominent corporate and labor law scholars claim that corporations and unions should be treated symmetrically when it comes to spending money on ideological activities. Citizens United v. FEC recognized this symmetry in one respect, by holding that both corporations and unions can spend unlimited amounts of money on politics. But Citizens United ignored the fact that dissenting employees have a right to avoid paying for union spending with which they disagree, while dissenting shareholders have no such right. Sensing that the Supreme Court might expand union dissenters’ rights in Friedrichs v. California Teachers Ass’n, these scholars intensified their calls for legal reform to bring the disparate treatment of corporations and unions into line.

This Article argues against the idea of moving towards greater union-corporate symmetry. The strength of arguments for symmetry depends on accurately identifying the principle underlying dissenters’ rights. On this score, existing accounts propose several candidates—from the idea that it is illegitimate to use power in the economic sphere to achieve goals in the political sphere, to the view that dissenters should not suffer misattribution of ideological beliefs, to claims about the corruption that comes from using other people’s money for political speech. But none of these principles hold up to scrutiny.

In their place, this Article argues—on both doctrinal and normative grounds—that dissenters’ rights are best seen as grounded in concerns for individual freedom of conscience. It then shows how the freedom-of-conscience principle undermines the case for union-corporate symmetry. The structure of modern corporations—and in particular the nature of modern capital markets—severs the link between shareholders’ wallets and their consciences. And when compared to the direct connection between dissenting employees and unions, threats to shareholder conscience are remote. Recognizing this fundamental difference between corporations and unions provides reason to be skeptical of various arguments for legal reform based on appeals to symmetry and clears the way for more persuasive claims to take their place.

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