Discretionary nonenforcement and overdue water bills

A law can stay on the books and still go unenforced. If the agency responsible for prosecuting violations declines to bring cases, the law loses some of its practical effect. Author A wants to explain why agencies exercise that power so often.

The problem starts with the gap between what lawmakers mean and what their words cover. A rule may literally forbid conduct that lawmakers never intended to prohibit. That is what “overinclusive” means here: the rule catches too much. Enforcing every technical violation would therefore punish some people whose conduct was not the real target.

Why not just write a better rule? Because lawmakers cannot foresee every situation, and language is imperfect. Adding more and more precise conditions also creates opportunities to slip through the gaps. We want to avoid catching the wrong conduct without making it easy for the intended conduct to escape. Better drafting is not a cost-free solution.

That explains A's comparison to punishing an innocent person to avoid letting a guilty person go. The comparison highlights the harm of enforcing too broadly. It does not mean that any risk of a bad result makes enforcement unacceptable. The author explicitly says we must compare that risk with the costs of the alternatives.

Discretionary nonenforcement offers a way through the problem. An agency can leave the rule in place but choose not to pursue applications that go beyond its intended purpose. That can reduce the harm of an overbroad rule without rewriting the rule to create more loopholes.

Of course, giving officials a choice does not ensure that they will choose well. They could even focus on the very conduct that lawmakers accidentally included. The last paragraph acknowledges that risk, then explains why it is not the usual pattern: legislative oversight helps keep enforcement near the lawmakers' intentions. Arbitrary enforcement still happens. Oversight limits the general tendency; it does not make every individual decision reasonable.

A's main point: Discretionary nonenforcement can reduce the harm caused by overinclusive laws, while legislative oversight generally keeps that discretion close to lawmakers' intentions.

B gives us a concrete collection problem. A city has 231,000 overdue water accounts and more than $625 million in unpaid bills and penalties. Officials want to cut off water at a few homes in wealthy neighborhoods. They are trying to make examples of selected customers so that others take payment seriously. This is selective enforcement in action: officials are choosing a few cases rather than applying the same response to every overdue account.

But author B immediately proposes another approach. Property owners owe the bills, so why not attach the debt to the property through a lien? The city would recover the money when the property was sold, and the potential credit consequences would encourage owners to pay sooner. That gives us both parts of the proposal: a way to collect and a reason not to keep delaying payment.

There is an obstacle. Existing law permits the city to use liens for tax debts, and water bills technically are not taxes. The author does not stop at identifying that loophole. The final questions recommend changing the law so that liens become available, instead of pursuing the water-cutoff plan.

B's main point: The city should change the law to allow liens for unpaid water bills rather than selectively shutting off residents' water.

Both authors consider the gap between legal rules and their practical application. A explains why selective nonenforcement can be useful when literal enforcement would do too much harm. B examines a particular selective-enforcement plan and argues for a different collection method. Those positions are not simply opposites: defending discretion in general does not require approving every way officials use it.