Out-Sourcing the Law

The Law

Our governments make laws.  It is a core function; making rules for how our society works.  My city of Pataskala just raised the speed limit on a Mink Street from 35 MPH to 45MPH (it’s about time).  The ordinance was passed, and the signs will be changed. Our local police department will enforce the new limits, just like they enforced the old ones.

Some laws, like the higher speed limit, are common sense.  There’s only a couple of houses in the area, otherwise it’s a “country road”.   Others are more politically contentious. Ohio just passed a law allowing any citizen (not under felony restriction) to carry a concealed weapon.  No license, no classes: head to the gun store (or Vance Outdoors) and plunk down your cash. Once you pass the instant background check, you’re “packing” a gun.  And if you do something illegal with that gun, the police and the courts will enforce those laws.

Enforcement

But there is a new legislative trend in the United States, that deals with some of the most fractious issues of our times.  The legislature passes a law, just like every other that regulates our behavior.  But rather than the government enforcing the law through police or civil fines, the enforcement is “outsourced”.  Instead of making violation a misdemeanor or felony, punishable by community control or fines or prison; these laws put the “violator” at risk for civil suit for any other citizen.  

So instead of facing a court to dispense criminal justice; some other citizen, who might not have any direct relation to what you did, is empowered to sue. An action violates the law; it is prima facie evidence of “guilt”.  The penalty is to lose the suit and pay “compensation” in the form of civil penalty and court fees; a cash amount, to the winner.

In this way the “state”, can pass a law and not be responsible for enforcing it.   The other “citizens” of the state, and even of other states, become the “enforcers” and the civil courts become the venue for dispensing punishment.  

Controversy without Consequences

Frankly, most of the laws using this novel concept of enforcement are coming from the conservative right.  The most familiar: the Texas law limiting abortions to six weeks, and the new Florida law banning any discussion of gender issues in primary classes.  But there are proposals in California to ban assault weapons using the same enforcement process, so it’s not all “one side” or the other.  

Today’s essay isn’t about the “Don’t Say Gay” law or why assault weapons should be banned.  It’s the process of enforcing these laws that gives me serious concerns.

Vigilante Justice

This concept creates a whole new level of vigilantism. It’s a governing state like the Soviet Union of old, when neighbors spied on their neighbors to find failures to live up to Communist ideals. And it begs for “organizations” to come in and profit by becoming the “enforcement agency”. Private businesses with the bankroll to file multiple suits, can sue and collect the “fees” from transgressors.  

It’s kind of like the companies that contract for red light camera enforcement.  They put up the cameras, they watch the videos, they send the tickets out and they take their cut of the fines.  But at least the tickets still went through the regular traffic court process, where drivers could dispute them.

In these “outsourced” laws, the government essentially washes their hands of the matter.  It becomes an issue for the civil courts, like a property dispute in the neighborhood.

Dodging the Fed

Some of the attraction for “civilian enforcement” is that it is more difficult for the Federal Courts to rule on their Constitutionality.   When “the government” enforces a law that violates a Constitutional right, there is a direct cause of action in the Federal Courts.  For example, when Ohio passed a “heartbeat bill” restricting abortions to before a fetal heartbeat could be detected, the Federal Courts immediately prevented enforcement.  But these “outsourced” laws are more difficult to bring to the Federal bar, since the state government is not involved in  “enforcement”.

There are other similar situations in the law today.  There is a group out of Wisconsin, the “Freedom from Religion Foundation”, that acts as an “enforcer” towards public schools that cross the First Amendment “religious line”.  A typical case, is one where the school allows the Ten Commandments to be displayed in the lobby of the high school, or where school authorities lead a prayer before graduation.  But there are a couple of critical differences between these “enforcement” activities, and “outsourced” laws.

First of all, the “Freedom from Religion Foundation” has to have a “client” with the legal standing to sue in that particular school district.  And, rather than sue for money, these suits are usually for “specific performance”: the school takes down the display or skips the prayer before the ceremony.  

Everyone has Standing

But the “outsourced” laws give EVERYONE standing to file suit.  A woman has an abortion after six weeks in Texas, everyone in the country has the “right” to sue.  A second grade teacher tries to explain why Bobby has a Mommy and Daddy, and Johnny has a Mommy and Mommy, and we all have “standing” in Florida court.  

It creates an “unlimited class” of folks with standing to sue, and a slam-dunk case to win.  It becomes “profitable” to become these “law enforcers”.  

It’s not what the American legal system is about.  Pitting citizen against citizen to do the job that the legislature is afraid to do (or to avoid Federal oversight) is just wrong.  It really doesn’t matter what issue were discussing, or which side you take.  If Florida really believes it should keep the teacher from talking to primary kids about “gender”, then the Florida legislature and Governor should enforce it themselves.  The same with Texas and abortions, and California and assault weapons.

We pass the buck enough.