Some rules are so specific and precise that they appear impossible to comply with, at least on a consistent basis. Sometimes these rules are overly ambitious, making the perfect an enemy of the good. Other times, they attempt to direct behavior that is beyond an administrative agency’s ability to control. There are other incidences where the rules conflict so significantly from social norms that it seems unlikely that many people would comply with the rule even if they were aware of its precision. Several examples are outlined below.
Michigan’s environmental state department is authorized to create rules about public swimming pools, and any violation of those rules is a misdemeanor. Public swimming pools include “related equipment, structures, areas, and enclosures intended for the use of individuals using or operating the swimming pool such as equipment, dressing, locker, shower, and toilet rooms.” The department’s rules apply to pools used at hotels, motels, campground, apartments, subdivisions, water parks and elsewhere.
According to these rules, pool owners must exclude from their facility anyone who has “an infectious or communicable disease” or a “possibly infectious condition, such as a cold, skin eruption, or open blister.” Without subjecting each pool user to a medical examination, it is hard to imagine how a pool owner could fully comply with this requirement. Equally difficult, each owner must “ensure that the bathing apparel worn in the swimming pool is clean.” Swimmers, for their part, could commit a misdemeanor just as easily. The rules prohibit any person from spitting in a swimming pool or “related facilities.”
Anyone offering carnival rides to Michiganders has a tall task of complying with all the rules promulgated under the Carnival-Amusement Safety Act of 1966. It is a misdemeanor to violate this act. The rules state that “the area surrounding the ride shall be clear and shall be kept free from trash and tripping hazards.” The size of the area “surrounding the ride” is unclear, but keeping it free of trash at all times would be just about impossible.
A final example of overly detailed regulations comes from the rules directing the behavior of people who care for foster children. Public Act 116 of 1973 authorizes these rules, and violators are guilty of a misdemeanor. Foster parents must ensure that the head of an infant less than one year old will “remain uncovered during sleep.” Keeping these infants warm at night must be challenging, because the rules further state, “Soft objects, bumper pads, stuffed toys, blankets, quilts or comforters, and other objects that could smother a child shall not be placed with or under a resting or sleeping infant.”
The sleeping arrangements for infants under two are equally difficult to comply with. There is a long list of unapproved “sleeping equipment,” and it includes infant car seats, swings, bassinets, pack’n play cribs, adult beds, soft mattresses and “other soft surfaces.” Any child under two who falls asleep in such an unapproved place must be moved to “approved sleeping equipment appropriate for their size and age.” Expecting foster families to move a peacefully sleeping infant who happens to be on the wrong surface is a tall order.
In short, some rules are not only impossible to consistently comply with, they are also impossible to enforce. As with other inappropriate administrative rules, they weaken the rule of law. Citizens must learn the rules that really matter — which ones they must comply with because they will be enforced — and know which ones they do not have to worry about because they cannot and will not be enforced. This is not how the law is meant to function, and administrative rules of this kind water down the force of the law.