Does the Rule of Law Apply in the US Government’s Enforcement Proceedings? It seems likely that most people would respond to the question with a resounding “Yes, of course, isn’t this America?” Unfortunately, the answer is, “Often No.”
Policymakers and judicial authorities in the United States and other developed countries often generally speak of the “Rule of Law.” By that, they mean all parties are equal under the law no matter their rank, status, or resources, that “no individual is above the law.” The concept has almost become a talisman in the media as of late when discussing various court cases and investigations against well-connected individuals and former top officials facing trials as our November elections near.
The “Rule of Law” is, in fact, a “term that is often used but difficult to define,” a vessel in which can be poured many meanings. However, certainly, two fundamental, bedrock principles are 1) the government should treat the governed fairly and reasonably and 2) the governed must have reasonable access to an impartial judiciary to hold government abuses in check when they are not treated fairly and reasonably.
Failure to meet these principles will lead to corrosion of the support of government overall, and “the state would owe its continued existence only to brute force, and that is seen as to be both perilous and costly.”
Yet as important as this concept is, there has been very little systematic analysis done with regard to whether the much-touted “Rule of Law” actually applies during enforcement proceedings, which comprise the bulk of the nation’s legal activities. In the United States and most developed countries, the legal regime can be seen as a pyramid with statutes at the top, agency regulations plus multiple interpretive directives in the middle, and enforcement of all of the above at the base–the broadest portion–of the pyramid. The press, decision-makers, and lobbyists typically focus on the development of statutes, and experts burrow in at the middle level where the regulatory process occurs under the Administrative Procedure Act. Much has been written on the legislative and regulatory processes but there has been little in-depth review of what happens when, once the dust has settled, these myriads of legal requirements get enforced by the government against its citizens. This may be due to the fact that enforcement tends to be individually based, with complex patterns, and very hard to track since most actions do not get reported in the case law. Yet, it would seem obvious that it is important to understand what is happening at this level where the law has broad applicability to its citizens.
I recently completed an extensive analysis of how the I-9 employee verification requirements under US immigration laws are enforced. I analyzed case law, reviewed penalty ranges and interviewed experienced practitioners in the field. That analysis revealed an enforcement bureaucracy that often advances unsupported legal theories leveraged to force settlements through inflated fines and threats of department and criminal sanctions. At times, enforcement officials seemed both imperious and perfunctory when it came to recognizing the difficulties placed on the regulated, regardless of guilt or innocence, occasionally exacerbated by a lack of knowledge of basic aspects of the applicable law such as the relevant statute of limitations. As one practitioner noted: “This type of heavy-handed enforcement does not induce better compliance with the law but a general mistrust of government and the general feeling of ‘Well, you can’t fight City Hall, so let’s just pay the fines and settle and it doesn’t matter if I am innocent.'” Another noted: “More thought needs to be given to those on the receiving end of the heavy club of government—and the problems I have touched on here undermines respect for the bureaucracy and their role by taxpaying employers who usually just want to thread complex requirements and do the right thing.”
Of course, the second prong of the Rule of Law, the right of access to a judiciary, is intended to be a check on, and remedy for, these kinds of abuses by government officials—however infrequently or frequently they may occur. Despite this bedrock principle, basic analysis has revealed that this “right” is more ephemeral than real to many employers, especially small ones, who simply cannot afford the cost of litigation or the interminable delays inherent in such litigation. As noted by another practitioner, “The option of not settling and pursuing judicial review is a long, drawn out and uncertain path. Practical matters block the doors to judicial relief except for the most well-heeled employer.” And while the precept of “justice delayed is justice denied” may be given an occasional nod, it is so routinely violated that the concept has become hackneyed.
Unfortunately, my extensive experience in this area, coupled with related hearings on Capitol Hill, demonstrate that this problem is not limited to the enforcement of I-9 laws in this country. As one witness put it during a hearing in the US Senate on similar problems under other statutes:
Senator, my experience has been that many small businesses will fight allegations of wrongdoing on a variety of statutes on principal, and a lot of these companies will go through an entire investigation knowing that they are right and then, as they have said here, when it comes time to really invest the money and the resources to fight a complaint, they settle…. When they get that spill [about costs] they all give up every one of them, and nobody goes forward.
Other witnesses in the House expressed similar problems.
These interrelated problems of overreach in enforcement and the unavailability to many of judicial review to hold those abuses in check have received little attention in written literature and persist as if inevitable. Yet, as noted above, fair treatment by the government and effective access to a judiciary are two fundamental pillars of the Rule of Law.
Does this matter? I would argue it does because it belies the argument that the so-called Rule of Law is widely applicable in this country or other developed countries. That fact can ultimately lead to disrespect for the law and undermine support for government. So what can be done—anything?
The costs and delays in our judicial system appear intractable. Therefore, solutions to restore Rule of Law principles perhaps can be better found at the initial level of enforcement, at the front end, rather than the back end. These might include steps to improve the enforcement of our laws through better training of agency personnel, with discipline for inappropriate behavior, which could be pursued through changes to government personnel regulations. But the difficulties in improving the federal bureaucracy are legendary as former Vice President Al Gore learned in pursuing President Clinton’s Reinventing Government Initiative. Another step would be to strengthen the provisions of the Equal Access to Justice Act (EAJA) which ”is meant to discourage the Federal Government from using its superior litigation resources unreasonably—it is in this respect an ‘anti-bully’ law”. EAJA allows small entities (not limited to employers) to recover costs against the government when prevailing in an enforcement proceeding but then provides that an agency can escape liability if it can show that its position was “substantially justified.” Those two words have engendered much litigation,[i] and unfortunately that fact requires a prevailing party to relitigate the case, with more costs, against an uncertain legal background and encourages agencies to continue to oppose reimbursement of costs even when the defendant has prevailed.
Recent reports by the Administrative Conference of the United States (ACUS) demonstrate that EAJA has essentially become a dead letter, despite its important goals. For example, the March 31, 2023 ACUS Report for FY 2022 found that DHS—with all of its sweeping jurisdiction—had only 85 EAJA awards, the Department of Labor, three, and the National Labor Relations Board, one. This paucity of awards repeats itself. As Congress has explored in the past, EAJA could be appropriately strengthened by eliminating the “substantial justification” loophole. This improvement would deter agencies from filing questionable cases at the outset due to probable liability for reimbursement of expenses of defendants, result in better targeting of resources against truly bad actors, and give small entities a realistic chance of vindicating their rights. Congress has explored reforms to EAJA in the past and it is time that these efforts be revisited.
This is not about gutting enforcement; this is about improving enforcement and simple fairness for small entities confronting the awesome power of government.
[i] “What constitutes substantial justification of government’s position so as to prohibit awards of attorneys’ fees against government under Equal Access to Justice Act,” 69 A.L.R. Fed 130
