Why the rule of law suffers when we have too many laws

Ilya Somin

...Because of the vast scope of current law, in modern America the authorities can pin a crime on the overwhelming majority of people, if they really want to. Whether you get hauled into court or not depends more on the discretionary decisions of law enforcement officials than on any legal rule. And it is difficult or impossible for ordinary people to keep track of all the laws they are subject to and to live a normal life without running afoul of at least some of them.
This sad state of affairs is deeply at odds with the rule of law. Whatever else that concept means, it surely requires that ordinary people be able to readily determine what laws they are required to obey, and that whether or not you get charged by authorities depends more on objective legal rules than the exercise of official discretion. Unfortunately, neither holds true in the United States today.
...There is much to criticize in both Obama’s and Trump’s approaches to legal issues. But the problem goes well beyond the flaws of any particular politician. The real threat to the rule of law is inherent in the enormous scope of discretion possessed by the executive in a system where there are so many legal rules that almost everyone has violated some of them, and it is not possible for law enforcement to target more than a small fraction of the offenders.

Scholars estimate that the vast majority of adult Americans have violated criminal law at some point in their lives. Indeed, a recent survey finds that some 52 percent admit to violating the federal law banning possession of marijuana, to say nothing of the myriad other federal criminal laws. If you also include civil laws (which, though theoretically less severe than criminal laws, often carry heavy fines and other substantial penalties), even more Americans are lawbreakers. The federal government today regulates everything from light bulbs to toilet flows. There is even a federal regulation making it a crime to advertise wine in a way that suggests it “has intoxicating qualities.”  The percentage of lawbreakers goes up even further if we include state and local laws and regulations as well as federal ones.

...Most Americans, of course, never face punishment for their lawbreaking. But that is true only because the authorities lack the resources to pursue most violators and routinely exercise discretion in determining which ones are worth the effort. Unless you are very unlucky or enter the crosshairs of law enforcement for some other reason, you may well be able to get away with a good deal of low-level lawlessness. In this way, the rule of law has largely been supplanted by the rule of chance and the rule of executive discretion. Inevitably, political ideology and partisanship have a major impact on the latter...

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