“The worse the society, the more law there will be,” American legal scholar Grant Gilmore once said. “In hell there will be nothing but law.” It seems he was correct.
In his 2011 State of the Union address, then-President Barack Obama spoke of the growth of federal administrative agencies in recent years—and the difficulty any president faces in trying to oversee it all. The president observed that 12 different agencies dealt with exports and at least five were responsible for housing policy.
Bogged Down by Bureaucracy
Supreme Court Associate Justice Neil Gorsuch agrees with Obama’s thoughts on bureaucracy. In his new book “Over Ruled,” written with the help of Janie Nitze, a former law clerk whose family fled communist Czechoslovakia, Gorsuch agonizes over the fates of people who have tried to live a lawful life. He writes that the sheer volume and complexity of laws proves to be overwhelming, and asks what it means for our nation’s promise of equal treatment under the law when our laws have become so numerous and so complex that only the affluent or a connected few can navigate their way through them.Gorsuch writes that rules, like good policing, rely on the consent of the governed. If rules are enforced without consent, they can become instruments of tyranny.
“Over Ruled” highlights not only that the United States has adopted more laws at an astonishing clip in recent years, but also that the punishments the laws carry have grown, too.
3 Real-Life Stories
John Yates, a fisherman, faced the possibility of decades in federal prison under the Sarbanes–Oxley Act—a law regarding financial crimes—for allegedly throwing undersized fish overboard during a government inspection.
The act was designed “to help protect investors from fraudulent financial reporting by corporations.” Yates argued that the law applied only to documents and records, not fish. Also, Yates claimed that the accusation against him didn’t make sense. Why would he replace undersized fish with new and still undersized fish? He explained that fish expand and contract when they are moved into and out of cool storage and onto hot decks or docks. He also said that his accuser wasn’t exactly a fish-measuring expert.
More than a year after his arrest and four years after an agent boarded his boat, a jury found Yates guilty of the Sarbanes–Oxley offense. After serving his sentence, Yates was ready to move on. The case had consumed his family for too long. But his wife insisted that they appeal to the Supreme Court to make sure that “tangible objects” should be read to mean documents or computer hard drives and not undersized fish. Yates won by a single vote. The Supreme Court decided that a tangible object means an object used to record or preserve information.
Gorsuch also discusses a magician who pulled a rabbit out of his hat. An out-of-control federal bureaucracy went after him because the law required exhibitors such as carnivals, circuses, and zoos to apply for and receive a federal license. The magician didn’t feel that he was in this league, but applied for the license. Among other things, the magician had to submit to surprise home inspections, send his itinerary to the agency if he took the rabbit out of town for an extended period, and draft an emergency disaster plan.
Years later, the magician recognized that this law was a needed but excessive response to thousands of animals that were abandoned when Hurricane Katrina made landfall in 2005.
Gorsuch also tells how on a beautifully clear December day in 1996, Bobby Unser, a three-time Indianapolis 500 winner, went for a snowmobile ride in a national forest in southern Colorado. When a dangerous blizzard swept down, he drove off into a ravine and his snowmobile got stuck. He became disoriented and lost as he struggled to find his way to safety.
Unser was in deadly peril. He had little choice but to leave the machine behind. He nearly died.
After reaching safety, Unser contacted officials of the U.S. Forest Service in Albuquerque, New Mexico, for help with locating his snowmobile. Instead of receiving assistance, he was charged with trespassing on protected wilderness.
The Provenance of Regulation
An interesting chapter takes a closer look at the regulatory movement. Gorsuch discusses the life of James M. Landis (1899–1964), who was a leading theorist and defender of federal regulation. When John F. Kennedy won the presidency, he asked Landis to undertake a comprehensive survey of the federal regulatory agencies. The report highlighted the growing scope and impact of federal regulatory agencies and the broad delegations Congress had afforded them. Landis’s report stimulated a program of regulatory reform and reorganization.This focus on regulation reminds people of unnecessary speed bumps in government. While our system is built on elected officials running three coequal branches with checks and balances, the three branches of government have surrendered some of their powers to an unofficial “fourth branch.” As Gorsuch and his coauthor Nitze claim, this surrender can undermine the Founders’ ideas.
This absorbing book makes excellent points.
