How to Tame the Regulatory State


I have just been reading a fascinating new book by Charles Murray, “By the People: rebuilding liberty without permission,” describing how the U.S. regulatory agencies were created and the many abuses they impose upon us.
Capture  As Mr. Murray explains, a Regulatory Agency first promulgates substantive rules of conduct.  A complaint that an Agency rule has been violated is then prosecuted by the Agency and adjudicated by the Agency.  If the Agency ultimately finds a violation, then and only then, the affected private party can appeal to an independent judicial court.  But an Agency decision, even before the court, possesses a very strong presumption of correctness on matters both of fact and law.
“If the enabling legislation is silent or ambiguous, Congress has in effect left a gap in the statute for the Agency to fill.  If the Agency in filling that gap has interpreted the statute in a ‘reasonable’ manner, the court will give effect to that judgment, deferring to the Agency.”
Mr. Murray proposes a new standard that “All regulations that are arbitrary, capricious or an abuse of discretion are automatically eligible for civil disobedience.” To this end a private legal-aid foundation should be set up to provide legal assistance to ordinary Americans who are being victimized by the regulatory state.  It would be funded by what Mr. Murray refers to as the Madison Fund.  A $100 million endowment from a wealthy individual would be sufficient to get it started.
Its purpose would be:

  • To defend people who are innocent of the regulatory charges against them.
  • To defend people who are technically guilty of violating regulations that should not exist, by drawing out the litigation as long as possible, making enforcement of the regulations more expensive to the regulatory agency than they’re worth and reimbursing fines that are levied.
  • To generate as much publicity as possible, both to raise public awareness of the government’s harassment of ordinary people and to bring the pressure of public opinion to bear on the problem.

The goal is to achieve a “No Harm, No Foul” regulatory regime.  A good analogy is to force regulators to use the same strategy as used by state troopers on interstate highways.  A majority of drivers are engaged in civil disobedience just about all the time.  But normal practice is to stop only those people who are driving significantly faster than the flow of traffic or are driving erratically.
As Mr. Murray concludes, “We’re all biased, but only people within government have the power to impose their biases on their fellow citizens with the force of law.”

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