Selective Enforcement as Legislation

The poet Ibn Harma performed before the caliph, and so delighted was the Prince of the Muslims that he asked the poet to name his reward.

"The reward that I want from the Prince of the Muslims is that he send instructions to his officials in the city of Medina commanding that when I am found dead drunk upon the pavement and brought in by the city guard, I be released from the penalty prescribed for that offense."

"That is God's law, not mine," the Caliph replied. "I cannot change it. Name another reward."

"There is nothing else I desire from the Prince of the Muslims."

The Caliph thought a moment, then sent instructions to his officials in Medina commanding that if Ibn Harma was found drunk and brought in for punishment, he should receive sixty strokes of the lash as the law commanded. But whoever brought him in should receive eighty.

It is one of my favorite medieval Islamic law and economics stories. In theory, Islamic law is not made by the sovereign but deduced by legal scholars from the Koran and the Hadith, traditions of what Mohammed and his companions did and said. The Caliph accordingly could not change the law against drunkenness. He could not even change the punishment, since it is a Hadd offense, one with a fixed punishment deduced from the religious sources. He could, however, repeal it de facto although not de jure by changing the incentive to enforce it.

I was reminded of this by today's news. President Obama is attempting to forestall congressional efforts to alter the Obamacare legislation by doing it himself without appeal to congressional authorization. Presumably the theory is that, since he is in charge of the executive branch and the executive branch is in charge of enforcing the law, he can simply announce that the part of the law forbidding insurance companies from continuing to offer plans that do not meet the requirements of the new law will not be enforced, at least as far as existing customers of such plans are concerned.

This raises two questions. One is a question of constitutional law, whether what he is doing is in law, as it obviously is in fact, a violation of the division of powers between the legislative and executive branches. The other is a political question. Arguably, the political effects of the present mess will have at least partly died down over the next year. Is Obama making things worse for his party rather than better by pushing the next failure, the result of good risks choosing to keep existing plans and leaving the plans sold through the market to the bad risks, making them very expensive, to just before the next election?