- Saturday, May 18, 2024

Anyone who has driven in the United States for more than a few days is fully aware that there are always two speed limits: the posted limit and the limit that is actually enforced by the police. Similarly, anyone who knows the judicial system knows that there are two processes: the one written down in law books and the one that actually exists in courthouses across the land.

Indeed, in almost any circumstance in which citizens interact with government, government officials are given pretty extensive administrative discretion. Police are not really required to arrest — and in some cases are actively discouraged from arresting — criminals for certain crimes. Judges rarely send defendants who are appearing before them for the first time to jail.

Along that same thread, prosecutors in certain cities, backed by George Soros, have made it clear that they are not going to prosecute what they consider petty crimes, such as robbery.

At the national level, President Biden and his administration have chosen not to enforce the laws addressing those who enter the United States illegally. The administration has also chosen to have taxpayers repay student loans they did not incur and from which they do not benefit. More recently, Mr. Biden has chosen to ignore the will of Congress and delay, perhaps indefinitely, the shipment of weapons and supplies to Israel.

That’s understandable; a significant portion of his political coalition would rather not repay their student loans. Similarly, a batch of his voters would rather the shipments of weapons to Israel never happen. Mr. Biden seems willing to entertain those approaches, at least until the November election.

Unfortunately, the only remedy citizens have concerning government officials who refuse to enforce the law is removal, either through impeachment or defeating them in elections. Those tend to be blunt and awkward instruments when it comes to decisions and actions that have been subject to discretion as a matter of practice, custom and precedent.

There’s the risk for the Biden administration. Its members’ unwillingness to faithfully execute the laws with which they may not completely agree has established a precedent that former President Donald Trump will surely use should he be elected. One suspects that there are hundreds of laws, government processes, understandings and customs with which Mr. Trump would be happy to dispense.

Let’s take the example of speed limits. Virtually every agency in the federal government has enforcement capabilities and processes. What if Mr. Trump’s appointees decided they didn’t feel like writing tickets? Isn’t that essentially what Mr. Biden has done — without consequence — at the southern border? What argument could be used against Mr. Trump doing more or less the same thing elsewhere in the federal government?

Once presidents are allowed to decide that they can ignore entire sections of the law, what limiting principle can restrain them?

Or consider something a bit more nuanced. Presidents and their appointees are given wide latitude in determining the completeness and rigor of applications and paperwork for everything from taxes to environmental permits. What prevents the next president from deciding that someone’s permit application looks just fine, even if it doesn’t address all the requirements in the regulation?

Judges would probably try to hold the line in such circumstances. Still, it seems unlikely that the judiciary, itself imbued with enormous discretion and almost entirely reliant on the soft power of citizen acceptance, would be all that eager to set limiting principles for administrative discretion exercised by the executive branch. Nor is it clear what would happen if a president ignored a court that tried to limit his authority.

One of the lessons from the last two presidential terms is that when impeachment is your only remedy for administrative discretion gone wrong, you really don’t have a remedy.

Whenever Mr. Trump and his advisers turn their attention to transition and governing, they should consider administrative discretion and the precedent set by the Biden administration and then act accordingly.

• Michael McKenna is a contributing editor at The Washington Times and co-host of the podcast “The Unregulated.”

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