Discretionary Nonenforcement

Passage A Law enforcement agencies can effectively nullify particular laws, or particular applications of law, simply by declining to prosecute violators. This power appears to be here to explain why.

Rules of law are almost always overinclusive: read literally, they forbid some conduct that the legislature that formulated the rule did not want to forbid. The costs of precisely tailoring a rule to the conduct intended to be forbidden would be prohibitive given the limitations of human foresight and the inherent ambiguities nonenforcement—by which the costs of overinclusion can be reduced without a corresponding increase in underinclusion (loopholes).

Of course, allowing discretionary nonenforcement does not determine the principle by which the law enforcement agency will select its cases. Conceivably the agency could concentrate its resources on those areas of conduct that had been brought inadvertently within the scope of the rule. But this seems unlikely. Capricious enforcement is not unknown stray too far from the intended, as distinct from the enacted, regulation being enforced.

Passage B The newspaper reported that 231,000 water customers in the city are late paying their bills—some by months, others by decades. In all, these water delinquents owe the city more than $625 million in overdue bills and penalties. So officials are planning to selectively cut the water to a few residences who will be in no position to complain since they were caught stiffing the system.

But property owners are responsible for water bills. So why not just do what every other property-related creditor or tax authority does—attach a lien to the property? The money owed would automatically be available whenever a property was sold, and the threat powerful incentive to keep current with one’s water obligations.

Well, here’s an answer: a loophole prohibits debts other than taxes from being subject to liens by the city, and, technically, water charges are not taxes. But if the problem is with the law, then why not change politically smarter, than shutting off people’s water?