‘Over Ruled: The Human Toll of Too Much Law’

"Over Ruled" examines the impact of strangulating laws on ordinary people.

“The worse the society, the more law there will be. In hell there will be nothing but law, ” said American legal scholar Grant Gilmore. It seems he is correct.

In his 2011 State of the Union address, President 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. He added, “The Interior Department is in charge of salmon while they’re in freshwater, but the Commerce Department handles them when they’re in saltwater. I hear it gets even more complicated once they’re smoked.” Fact checkers found his statement mostly true.

Bogged Down by Bureaucracy

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’ve tried to live a lawful life. Gorsuch says 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 points out 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 that the United States has not only adopted more laws at an astonishing clip in recent years, but also that the punishments the laws carry have grown too.

The best way to make this point, Gorsuch feels, is through stories, not dry statistics. He turns his focus to a fisherman, a magician, Amish farmers, immigrants, a hair braider, and others who suffered hardships over unyielding rules. These stories help readers understand the extent of this problem.

Three 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 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? Yates 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.

Over 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 go to the Supreme Court to make sure tangible objects should be read to mean documents or computer hard drives and not undersized fish.  Yates won by a single vote.

Then there was a magician who pulled a rabbit out of his hat. An out-of-control federal bureaucracy went after him. 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 was a needed, but excessive response, to thousands of animals that were abandoned when Hurricane Katrina made landfall in 2005.

On a beautifully clear December day in 1996, Unser, a three-time Indy 500 winner, went for a snowmobile ride in a national forest in southern Colorado. When a dangerous blizzard swept down, Unser drove off into a ravine and his snowmobile got stuck. Unser 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. Unser insisted that this was not his intention; he had merely veered off course when he got lost in the storm. Unser went to court, was found guilty, and appealed. The Tenth Circuit affirmed Bobby’s conviction. Finally, on Oct. 4, 1999, the Supreme Court denied Bobby’s petition. The government wound up spending $1 million to brand Unser a criminal, all to secure a $75 fine.

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). James M. Landis was a leading theorist and defender of federal regulation. In Landis’s later years, Kennedy 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’ 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.

‘Over Ruled: The Human Toll of Too Much Law’ By Neil Gorsuch and Janie Nitze Harper, Aug. 6, 2024 Hardcover: 304 pages

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