This, in turn, has dire consequences for the rule of law in our society: It makes it very difficult for ordinary citizens to determine what laws apply to them and how to avoid violations, and ensures that whether a given lawbreaker gets prosecuted depends far more on the exercise of police, prosecutorial, and executive discretion than on any objective application of legal rules. Thus, the rule of law is in large part supplanted by the rule of whatever men and women control the levers of power at any given time. As Sotomayor notes, those people have vast discretion in deciding which of the “countless laws” on the books they want to enforce, and when.
Ironically, Sotomayor did not mean to condemn this aspect of our legal system, but instead to portray it as a positive – at least in one limited sense. She raised the issue in response to New Jersey’s argument that a federal law barring the state from “authorizing” legal sports gambling under their own law amounted to unconstitutional “commandeering” of the states. According to Sotomayor, the state may not really be commandeered because “[t]here is nothing here telling this state that it has to enforce this law.” All it has to do is keep the anti-sports gambling law on the books. Executive officials could still turn a blind eye to sports gambling, even if it is illegal.
Sotomayor’s argument strikes me as weak. Even if the federal law does not require states to enforce laws against sports gambling, it does require them to keep such laws on the books, unless – perhaps – the state legalizes gambling with no restrictions whatsoever. As Justice Anthony Kennedy pointed out during the oral argument, mandating the continuation of a law “the state doesn’t want but that the federal government compels the state to have” surely qualifies as commandeering.
Moreover, mandating the continuation of anti-sports gambling laws is a major imposition on states, even if law enforcement officials currently have no desire to enforce it. It prevents the state legislature from credibly assuring businesses and consumers that their gambling activities are actually legal, and thereby immune from prosecution. Legitimate businesses will be reluctant to invest in an enterprise that could be targeted by law enforcement any time executive branch decision-makers change their minds, or are replaced by a new set of officials with different views than the old.
But whether or not it helps to refute New Jersey’s position in Christie v. NCAA, Justice Sotomayor’s statement highlights a dangerous reality of our legal system. One that too many of us tend to ignore. So long as there are vastly more laws on the books than the government can realistically hope to enforce, the rule of law will continue to be imperiled.