Defying Administrative Tyranny

Over Ruled: The Human Toll of Too Much Law, by Neil Gorsuch and Janie Nitze (HarperCollins, 304 pp., $25.60)

t’s daunting to start or run a business in the United States. You often can’t pursue your dream without bureaucratic strings attached. Run afoul of regulators, and you’ll face costly litigation. As Supreme Court associate justice Neil Gorsuch and coauthor Janie Nitze argue in Over Ruled: The Human Toll of Too Much Law, these strictures pose a fundamental threat to American liberty.

Gorsuch and Nitze chronicle the monetary and human costs of excessive regulations, particularly from the federal bureaucracy. Their book collects stories of everyday Americans on the receiving end of regulatory overreach.

Over Ruled begins with an exploration of the ever-more imperial character of America’s legal system. Federal regulations grow more voluminous, complex, and obscure with each passing year. Even seasoned attorneys and judges can struggle to understand these mandates. The number of federal crimes has more than doubled since 1982, and the number of regulations carrying civil monetary penalties has reached a staggering 300,000.

As a result, the federal government can increasingly punish people for non-criminal offenses. Consider the case of fisherman John Yates, who possessed fish in his catch branded as “undersized” by a federal agent and threw them overboard before the matter could be investigated. Yates was robbed of his livelihood, separated from his family for 30 days, and sentenced to three years of supervised release. Despite ultimately winning his case at the U.S. Supreme Court, he suffered devastating financial and reputational damage.

The authors note that this regulatory imperialism inclines us to

turn to the law to address any problem we perceive. More than ever, we are inclined to use national authorities to dictate a single answer for the whole country. More than ever, we are willing to criminalize conduct for which we disagree. And more than ever, if elected officials seem slow to act, we look to other sources of authority to fill the void.

This reliance on “national authorities,” Gorsuch and Nitze note, undermines the principles of federalism, since federal rules and regulations override state and local laws. It impedes local communities from governing themselves, and forces citizens to engage with distant federal bureaucracies in Washington.

The federal government’s expansive rulemaking role also prevents the states from adopting competing policy solutions to common problems. That competition is one of the benefits of federalism: one region tries something that doesn’t work, neighboring communities take note and revise their policies accordingly.

Gorsuch and Nitze describe how such competition boosted Kalamazoo, Michigan, after the city lost much of its automotive manufacturing base in the 1960s and 1970s. Using a system with multiple and competing centers of political decision-making, Kalamazoo, Grand Rapids, and surrounding cities were able to adapt financially and rebound from the negative effects of deindustrialization.

The federal government’s one-size-fits-all solutions, by contrast, afford little room for policy experimentation or dissenting viewpoints. The Biden administration’s failed whole-of-government approach to environmental justice and the federal government’s failure to contain outbreaks of Covid-19 are illustrative examples.

Federal regulations also instill needless fear in many Americans. The authors introduce Marty Hahne, a magician investigated by the U.S. Department of Agriculture for not carrying a license under the Animal Welfare Act for the three-pound rabbit used in his act. “I always thought I had a fun, easy job, and I would never have to worry about the government bothering me about it,” a perplexed Hahne recalled to a reporter. “But our government has gotten so intrusive, their tentacles are everywhere.”

A cat museum faced a similar ordeal. The Department of Agriculture fined the museum $10,000 a day for lacking a license to house rescued cats. The museum filed multiple requests for a hearing in the USDA’s internal court, but the department’s judge denied the applications in what turned out to be a five-year struggle. The department eventually agreed to drop the fines, but the museum spent $200,000 to appease USDA officials and their regulatory demands.

The museum ran into a problem that Gorsuch and Nitze discuss at length: administrative law courts (ALCs), in-house courts run by federal agencies. These courts are often favorable venues for their host agencies. The Securities and Exchange Commission, for example, wins an average of 90 percent of its in-house cases, far outpacing the rate at which the government wins cases (69 percent) in the regular court system. The Federal Trade Commission prevails nearly 100 percent of the time. The Coast Guard’s administrative law judges (ALJs) were said by the authors to “work hand-in-hand” with the agency’s executive leadership.

Many ALCs even permit hearsay evidence by the agency officials suing defendants, while enabling the agency to set its own procedural rules, including, in informal cases, putting the burden of proof on the defendant. ALCs at the Social Security Administration, Labor Department and elsewhere have permitted their administrative law judges to exclude evidence requested by private parties in court, potentially withholding facts that may exonerate the accused.

In their conclusion, Gorsuch and Nitze identify three fundamental freedoms—ordered liberty, the right to association, and the right to pursue happiness absent harm to others—and provide anecdotes illustrating the threats to those freedoms.

Their story about the threat to ordered liberty was particularly chilling. It involves Catholic Social Services, a nonprofit agency that, among other things, places foster children in caring homes. As a Catholic organization, CSS abided by its religious principles and refused to place children in two-parent same-sex households. The city of Philadelphia blocked CSS from working in its foster care system, effectively denying an estimated 35 percent of foster care kids in Philadelphia access to interested families per month. After nearly a three-year battle, the case reached the Supreme Court, which lifted the city’s freeze on religious-freedom grounds. The example demonstrates that local bureaucrats—not just federal regulators—can pose real threats to American liberty.

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