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With the implementation of open government initiatives (i.e. data from the state is public), it is easy today to check whether specific laws are or not being followed by public or private entities.

The situation is: given that this data is public, it is public when a specific entity is not following the law. It can also be public that on those situations the state is not suing these entities, which implies that is public that the state is not enforcing the law on those specific situations.

My question is: is this legal? I.e. can I sue the state for not enforcing the law, independently of being made deliberately or by negligence?

More broadly, does the state has the legal obligation to enforce the law? If yes, who enforces it?

If you know a great reference about this, could you cite in the answer please?

  • Is there a particular state you're interested in? Rules about standing can vary on a state-by-state basis. – cpast Jun 8 '14 at 23:40
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    @cpast Is is ok to consider within Rousseau's Social Contract? – Jorge Leitao Jun 9 '14 at 4:33
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Generally speaking, the law is enforced through the balance of powers and federalism, with state and federal legislators, executives, and judges having various roles assigned by constitution or statute. It's too complex to reduce all laws and actions to a single formula, except to say that multiple parties have various parts to play in assisting, overseeing, and interrupting each other. In other words: "checks and balances."

Laws with the intent to restrain government officials in the exercise of their duties may have specific provisions allowing certain people (or any member of the public) standing to obtain a court order. So for a sunshine law (i.e. state FOIA equivalent), there is typically a process to go to court to force compliance. (Example: Fla. Stat. §286.011.) There may also be an avenue to make recalcitrant agencies pay your court costs.

In many cases, it may be difficult to say that a governmental unit is "not following the law" and in others, the cause of action may not accrue to anyone. So it may be a fundamentally political question that no court will adjudicate (meaning you must rely on elected, appointed, or employed officials to enact change, because the courts won't intervene). It may be clear that the law is being violated, but nobody has standing to sue. For example, if a bureaucracy fails to meet statutory deadlines to review license applications, but no statute or common law decision gives anybody the right to sue, then courts may not be able to intervene.

In Lujan v. Defenders of Wildlife, activist plaintiffs challenging US funding of projects in Africa and Asia (on grounds that it harmed wildlife) were said to have no standing because they had no discernible concrete injury. The general and abstract notion of harm was not enough to have a claim, and there's no general claim to sue the government for policies one opposes (absent a discernible injury). This is why you can sue if the Army rolls a tank over your house but you can't sue for wasting your tax dollars on an unused tank. Once again, it often falls to government officials (elected, appointed, or employed) to correctly and appropriately enforce the law.

The issue also came up in the context of states declining to defend their anti-gay marriage laws in court. The Supreme Court in Hollingsworth v. Perry said that the authors of the ballot initiative did not have standing to appeal an adverse ruling by a federal court. Which is a good result for getting California gay marriage, but a terrible result for initiatives intended to restrain state governments. What this means is that a state can refuse to defend its laws in court, allowing the executive (Governor and Attorney General) to abandon laws passed by referendum or by the legislature. Not a great result, given the need for laws to restrain corruption of the people who can decide to nullify those laws.

Of course, in many situations the feds will intervene either with criminal law or with the 14th Amendment. The federal government, both the policy branches and the courts, have come into state affairs to protect certain civil rights. The executive enjoys prosecuting state and local politicians for real or perceived corruption. But if a state fails to defend its own law, on a matter that doesn't implicate a federal interest such as corruption or civil rights, then there may be little for the feds to do.

As a general rule, government is meant to be self-executing and self-enforcing. The legislature, executive, judiciary, and bureaucracy work in concert with various other actors (such as pressure groups, standards agencies, and industry representatives) to make and enforce laws. The system has checks and balances on the process, but it can't cover everything. Indeed, sometimes we prefer the government not have to enforce every law (e.g. many states and localities declined to enforce alcohol Prohibition).

This is why it is important to write causes of action into reformist laws. The right to sue and recover court costs give real teeth to a sunshine laws. It's also important to have robust public interest law firms to defend civil rights (e.g. Institute for Justice, ACLU, FIRE, among many others). Both are important avenues to restraining government lawlessness through use of the courts, rather than relying on the loose and speculative assistance of general public agitation (e.g. Occupy or Tea Party) or electoral politics.

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    This is a great answer, but it feels US-centric. Does the same set of balances exist in other countries? Does the abstract concept of "State" imply the obligation to enforce laws? – Bobson Jun 11 '14 at 19:00
  • Note about Perry: While everything you wrote is correct, it could be misleading. The official backers of the initiative didn't have standing to appeal the decision, but they were permitted to intervene in the trial court. It's not necessarily the case that the state can abandon an initiative to lose by default, as the initiative first has to lose in trial court, where it can be defended. – cpast Jun 13 '14 at 0:08
  • @cpast - Yes, that is the distinction as I understand it. The court can let them argue, but not bring the suit. In matters similar to Sunshine laws, if nobody has statutory standing or discernible injury, then non-enforcement by the executive is tantamount to stealth repeal. – NL7 Jun 13 '14 at 20:13
  • @Bobson - I could comment on other countries with far less knowledge and specificity, so I declined to do so. I also interpreted it in a more practical sense; I didn't get the sense of "ought" but rather "must" from the question. But since you asked, I would say that the concept of a "state" is merely a formalized system that claims a monopoly on force, typically in a physical jurisdiction. The concept of stateness is independent from liberal conceptions of justice, equality, fairness, freedom, individual rights, or rationality. A "state" may be corrupt and violent, such as North Korea. – NL7 Jun 13 '14 at 20:21
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    Put another way, stateness is not intrinsically about law enforcement, just about claiming a monopoly on the legitimate use of force. It would be good if a state were just and enforced laws reasonably and equitably; but the state that fails to do so is still a state. – NL7 Jun 13 '14 at 20:25
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Generally speaking, in all the countries I know, the authorities (typically the “public prosecutor's office”, “state attorney” or whatever it is called) have a lot of discretion on whether to pursue a particular case and on how much resources to spend on enforcing specific laws or rules. Depending on the country, the government might define general guidelines for this or even have the power to intervene in specific cases. Victims might also have some way to push for legal proceedings and force a decision of some kind.

It's difficult to see how it could work differently. Should the state hire thousands of police officers and put speed cameras on every stretch of road? Create a task force to investigate each petty theft thoroughly? Or give up imposing rules on driving or property because they can't possibly be fully enforced?

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