Governments attempt to effectuate successful implementation of policies by enforcing laws and regulations. Enactment refers to application of a law or regulation, or carrying out of an executive or judicial order.
Theories of enforcement
Enforcement serves a number of functions; the enforcement of social norms can ensure conformity within insular communities, the enforcements of laws can maximize social benefits and protect the public interest, and enforcement may also serve the self-interest of the institutions that oversee enforcement. Enforcement can be effectuated by both public institutions and private, non-governmental actors. Enforcement is often accomplished through coercive means or by utilizing power disparities to constrain action. Some scholars, such as Kate Andrias, have also argued that institutions enforce rules when deciding "when and how to apply" laws and regulations.
Delegation of enforcement powers
Some governments will delegate enforcement powers to subordinate governmental entities or private parties. In the United States, for example, the federal government and state governments often delegate a range of enforcement powers to administrative agencies. There has been considerable debate in legal scholarship about the degree to which governments should oversee and supervise institutions to which enforcement powers have been delegated.
Institutions may choose to exercise discretion, thereby enforcing laws, regulations, or norms only in selective circumstances. Some scholars, such as Joseph H. Tieger, have suggested that selective enforcement is inherent component of all enforcement regimes, because it is impossible for enforcers to observe and catch every violation. Other scholars, such as Margaret H. Lemos and Alex Stein, have suggested that "strategic" enforcement is a cost-effective method of achieving social benefits; by focusing enforcement on the worst violators, other violators will "downscale" their activities so that they do not appear to be the worst offender.
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- See Black's Law Dictionary, Enforcement (2d ed. 1910).
- Kate Andrias, The President's Enforcement Power Archived 2016-11-04 at the Wayback Machine, 88 N.Y.U. L. Rev. 1031, 1034 (2013); Avlana Eisenberg, Expressive Enforcement, 61 UCLA L. Rev. 858, 901 (2014) (discussing "gaps" between the enactment and enforcement of legislation).
- Amalia D. Kessler, Enforcing Virtue: Social Norms and Self-Interest in an Eighteenth-Century Merchant Court, 22 L. & Hist. Rev. 71 (2011).
- John T. Scholz, Voluntary Compliance and Regulatory Enforcement, 6 L. & Pol'y 385-88 (1984); see also Margaret H. Lemos, State Enforcement of Federal Law, 86 N.Y.U. L. Rev. 698, 701 (2011) ("The public interest promoted by state enforcement is the interest of the state and its citizens, while federal enforcement purports to serve the broader national interest.").
- Margaret H. Lemos and Max Minzner, For-Profit Public Enforcement, 127 Harv. L. Rev. 853, 886 (2014).
- Zachary D. Clopton, Redundant Public-Private Enforcement, 69 Vand. L. Rev. 285, 288 (2016); Michael Selmi, Public vs. Private Enforcement of Civil Rights: The Case of Housing and Employment, 45 UCLA L. Rev. 1401, 1456 (1998).
- See Scott A. Anderson, The Enforcement Approach to Coercion, 5 J. of Ethics &Soc. Phil. 1 (2010).
- Kate Andrias, The President's Enforcement Power Archived 2016-11-04 at the Wayback Machine, 88 N.Y.U. L. Rev. 1031, 1040 (2013) (comparing "enforcement" with "rulemaking").
- Kurt T. Lash, The Sum of All Delegated Power: A Response to Richard Primus, The Limits of Enumeration, 124 Yale L. J. F. 180, 184 (2014) (discussing enforcement powers in federalist systems of government); John F. Manning, The Means of Constitutional Power, 128 Harv. L. Rev. 1, 44 (2014) (citing specific examples of delegation of enforcement powers to agencies in the United States); Kate Andrias, The President's Enforcement Power Archived 2016-11-04 at the Wayback Machine, 88 N.Y.U. L. Rev. 1031, 1040 (2013) (noting that enforcement powers can be delegated to "private parties").
- Robert F. Durant, The Oxford Handbook of American Bureaucracy 379 (2010) (discussing agencies' "compliance and enforcement" powers).
- Compare, e.g., Peter H. Aranson, Ernest Gellhorn, and Glen O. Robinson, Theory of Legislative Delegation, 68 Cornell L. Rev. 1 (1982) with Gillian E. Metzger, The Constitutional Duty To Supervise, 124 Yale L. J. 124 (2015).
- See Kenneth Culp Davis, Dialogue on Police Rulemaking: Police Rulemaking on Selective Enforcement: A Reply, 125 U. Penn. L. Rev. 1167 (1977).
- Joseph H. Tieger, Police Discretion and Discriminatory Enforcement, 1971 Duke L. J. 717, 743 (1971) ("The exigencies of police work are such that even the most elaborate set of statutory or regulatory directives could not succeed in removing all occasion for the exercise of judgment.").
- Margaret H. Lemos and Alex Stein, Strategic Enforcement, 95 Minn. L. Rev. 9, 9-10 (2010).