Estimated Time to Read: 3 minutes
Regulations often masquerade as laws. Legislatures pass broad statutes, agencies write detailed rules, and executives decide when, how, and against whom to enforce them. This final step, enforcement discretion, holds the real power and is where liberty most frequently erodes.
Regulations are not laws. They are administrative interpretations written by unelected officials, distant from voters, yet they exert enormous control over daily life, from business operations and family finances to local government actions.
The Constitutional Design and Its Erosion
The U.S. and Texas Constitutions assign lawmaking to Congress and the Texas Legislature, enforcement to the executive, and interpretation to the courts. This separation safeguards self-government and limits the concentration of authority.
The modern administrative state blurs these roles. Agencies now draft regulations with the force of law, enforce them selectively, and often adjudicate disputes internally. This is government by bureaucracy, not government by the consent of the governed.
Friedrich Hayek warned that liberty depends on laws being general, predictable, and known in advance. Many regulations fail this standard: they are technical, frequently changing, and enforced only when politically convenient.
Enforcement Discretion: The Real Power
The most dangerous authority exercised by agencies is not rulemaking but enforcement discretion. An unenforced regulation creates uncertainty. A selectively or arbitrarily enforced regulation is worse. It breeds favoritism, turns citizens into guessing pawns, and undermines the rule of law.
In Texas, the problem appears across multiple sectors. The Texas Department of Licensing and Regulation oversees numerous industries but often issues guidance without clear or consistent enforcement, leaving businesses uncertain about compliance. Some local District Attorneys decline to prosecute crimes like shoplifting or trespass. Federal immigration laws exist, but enforcement varies dramatically by administration.
Selective enforcement shapes behavior far more than statutes alone and makes equal justice impossible.
Courts Correcting Course: Ending Chevron Deference
For decades, Chevron deference required courts to defer to agencies’ “reasonable” interpretations of ambiguous statutes, significantly expanding bureaucratic power.
In Loper Bright Enterprises v. Raimondo, the Supreme Court overturned Chevron, holding that courts exercise independent judgment when interpreting statutes and may no longer automatically defer to agency interpretations. This decision restores judicial review as a critical check on regulatory overreach.
Regulation as a Substitute for Legitimate Lawmaking
Regulation has becomea political escape hatch for legislators and executives alike. Passing laws demands debate, compromise, and accountability; enforcing laws evenly and strictly requires courage; regulation requires neither. Legislators can appear active while delegating hard choices. Executives can signal virtue without legislative action. Agencies expand power by stretching vague statutes to fit policy goals.
Texas’s large and diverse economy heightens the challenge. Agencies like the Texas Commission on Environmental Quality and the Department of State Health Services regulate extensively but enforce selectively, creating a maze of rules that vary by county or administration, creating government by discretion, not law.
What Must Change
If a statute is flawed, it should be repealed or amended through the legislature. If sound, executives must enforce it consistently and transparently. Using regulation and selective enforcement as substitutes for legislation is an abuse of power.
The path forward includes:
- Clearer, more precise statutes from legislatures
- Strict, consistent enforcement of existing laws
- Executive duty to enforce the law fully and fairly
- Judicial willingness to interpret statutes independently, without deference
When law is twisted to serve discretion instead of justice, it becomes an instrument of plunder, not protection – Bastiat. Genuine lawmaking and enforcement should be the rule both in Washington and right here in Texas.
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