How an Attorney General Enforces the Law

Harry Beck was a telephone linesman and a member of the Communication Workers of America Union. If he wanted to be a linesman he really had little choice about membership. If you want to be a linesman, you are compelled to pay union dues. Beck, however, was displeased that part of his dues were used for union political activities — contributions to candidates and lobbying for legislation.

With the support of the National Right to Work Foundation, Beck sued his union and the suit ultimately wound its way to the US Supreme Court. In 1988, that court ruled that Beck’s First Amendment right to free association precluded the Communications Workers of America from, in effect, compelling Beck to support political activities. Workers who are compelled to pay union dues, the court said, are free to withhold that portion of the dues devoted to political activity.

Belatedly in 1992, George H. Bush issued executive order 12800. The order required federal contractors to post in a conspicuous place worker rights under the Beck decision. When Bill Clinton became president, he wasted little time. In February 1993, Clinton paid back union support and withdrew the executive order. The decision in Beck versus Communication Workers of America is the law of the land, but Clinton was in no frame of mind to enthusiastically pursue enforcement. Free association rights for union workers were not a priority for the Clinton administration.

The focus here is not on the wisdom or folly of the Beck decision. Rather, it is to place in context the derisive question conjured up by Democrats as to whether John Ashcroft will enforce the law as US attorney general. Of course, he will enforce the law, but the question is ill-posed and not particularly illuminating. Then again, the purpose of the question was not to shed light but rather to paint a picture of darkness.

Attorneys general, like all prosecutors save independent counsels, have finite time and funding. They must, therefore, set priorities in the application of those resources. This is a good thing. Who would enjoy a society overseen by prosecutors with unlimited resources rigorously enforcing laws without the necessity to exercise judgment.

Reasonable people can disagree as to the best apportionment of resources for pursuing violent or white-collar crime. However, the selection of these priorities is a reflection of the values and standards of an administration. How much effort is devoted to enforcement of environmental regulations, organized crime, or anti-trust laws is a measure of where an administration believes the nation’s problems lie.

It is a safe bet that George W. Bush and his attorney general will devote fewer resources to raiding the compounds of religious cultists, storming Miami homes at gunpoint in search of young illegal Cubans, and seeking out and eradicating instances of possible federal aid to Boy Scouts. Squandering prosecutorial resources dissipates the moral authority of an administration. The sage and thoughtful enforcement of the law, by contrast, can help define an administration and reinforce and support its legislative initiatives.

For example, it is a melancholy fact that a large number of African-Americans are concerned that Bush’s aversion to a racial spoils system and race-based preferences will undermine the ladder to educational and employment success. The Bush position imposes an additional moral burden to aggressively enforce anti-discrimination laws. Vigorous enforcement of equal protection laws can validate the Bush claim to be a uniter.

Bush is also unconvinced of the efficacy and legality of the proliferation of laws restricting the Second Amendment freedom to bear arms. If Bush believes that such laws unreasonably constrain law-abiding citizens, he is under an additional obligation to prosecute and jail those convicted of using a gun in the commission of a crime. Again priorities in enforcement define an administration’s vision.

Some Democratic Senators in the Ashcroft confirmation hearings were so bent on angrily satisfying their core constituencies that they failed to ask the real and important questions. Rather than asking Ashcroft if he will enforce the law, they should have asked about his priorities in enforcement.

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