Shall or May

Shall or May

The ambiguity of written law has been mentioned on this blog several times. In most cases, the vagueness is intentional as it allows implementation to favor the rulers, not the ruled. It is important as the pending case about Border enforcement will show. The law says those seeking asylum (yes, that is what all of those millions are seeking) “shall” be held until a court hearing. In essence, the law states that they cannot simply be “logged-in” and released on their own recognizance.

The problem is, the law has never been enforced.

Even the Right’s beloved Trump didn’t do it (follow the “letter of the law”) and it is crystal clear the current president is making zero effort to keep invaders, asylum seekers, or those poor people – depending on a person’s political slant as to the moniker applied – out. Again, as has been discussed in prior blog posts, businesses want these folks. They buy stuff, work cheap, don’t complain and are often heavily subsidized by the government. I digress. How does the citizenry get laws enforced?

Elect a new Congress.

The Legislature has the right, and responsibility, to promulgate law. When these laws are created, often for excellent reasons, the duty to enforce them falls to another party. Enforcement is key. This is another place where the government often fails. It is not rocket science. Think of similar fast food places. They may have the same sales, but one store’s margins are better than the other. The policies are the same, so why are the outcomes different. Execution and enforcement (or lack thereof) of the rules. The same thing exists with laws.

The way many of these laws are written makes them very difficult to enforce even if they came with a separate army of staff people that are well managed, diligent, honest and skilled. They don’t and are rarely funded or staffed to achieve the original desired oversight. Many executive branch folks do the best they can with the budget they have. The administration (e.g., the boss) also changes periodically and will have their own idiosyncrasies to add to the execution challenge. These same challenges exist in public corporations and are not limited to government programs. Managers do the best they can within budget. Some managers are willing to confront the auditors about why things are done a certain way or why aspects of the law are ignored. Most managers are unwilling to risk job or career and simply muddle through as best they can.

Congress should examine these programs (and there are thousands of them) and see what laws should be changed (or removed!!!) to allow flexibility while still achieving the underlying goal. It needs to leverage the “power of the purse” to move program oversight away from the Executive branch and to the States or Local players. In some, very rare cases, taking it private for a set number of years to encourage different ideas. Government programs should not be run by private industries. It creates conflicts of interest. The people need fewer government programs, not more programs run by non-government entities.

Congress must face reality when it comes to funding legislation. As an example, sentencing laws can be expensive, but so is lawlessness. If the goal is to incarcerate people for chewing gum (Sister Mary Ellen would be thrilled and scowl it was about time!), great, but don’t suggest it has a net zero fiscal impact due to the need for fewer trash collectors. Laws cost money and for some the people are willing to pay, others, not so much. Congress must provide a real accounting of what it costs to implement these laws and see if the people are willing to pay. Right now, the people are funding so many programs, many of which are not explicitly defined by law. As money gets tighter, the people need to decide what laws they want to fund.

Shall and may are a bit like need and want.

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Categorized as Policy

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