THE TYRANNY OF THE ADMINISTRATIVE STATE
Almost all federal law is not the product of those we elect but, rather, of the unelected heads of the federal administrative agencies. Because those agencies are run by politically appointed partisans who are given vast executive, legislative, and judicial powers combined, they rule like absolute monarchies and their governance of American commerce meets the Founding Fathers’ definition of tyranny.
The tens of thousands of regulations the unelected heads of federal agencies promulgate and enforce each year form a complex labyrinth through which every business of any size must pass or pay a major, often devastating, price. As those businesses pass through the regulatory labyrinth, they learn all too well that the federal government is their lord and master and determines who among them will win and who will lose in the market. The very engine upon which we depend for innovation and for sustaining the economy and generating employment is now greatly constricted by the suffocating embrace and weight of an all-intrusive and overwhelmingly burdensome administrative state.
To cope with the complexities and costs of administrative law, American enterprise is forced to divert profit to the employment of administrative attorneys, accountants, risk managers, and former government bureaucrats. Each year the cost of those services rises commensurate with the unending growth of regulatory law.
For industry leaders, the mass of regulation forms a convenient anti-competitive barrier, keeping market entrants out and, if they manage to get in, denying those entrants the freedom to engage in aggressive advertising and market challenges to industry incumbents. Large firms employ lawyers to lobby agencies for the adoption of ever more anti-competitive regulation, regulation that masquerades beneath a faux public interest veneer, which the agencies then sell to the public as essential for consumer protection. Agency heads know that if they play their cards right and favor particular industry sectors over others, they will be able to leave office and enjoy lucrative positions as payback for their service to market leaders. That form of corruption is commonplace in Washington. The federal government is very much a government for sale.
For new market entrants, the federal regulatory burden is costly and substantial. They must cope not only with competition from entrenched incumbents who enjoy a cozy relationship with regulators but also from regulations that prevent them from communicating precisely how their products work, that overwhelm them with regulatory traps for the unwary, and that force them to employ administrative lawyers, accountants, and risk managers to navigate through the regulations. If they fail to comply with the regulatory constraints that surround them, the consequences are often the equivalent of capital punishment (huge fines, prosecution that can include criminal charges, repeat federal inspections which, quite often, they must pay for, and record keeping requirements that may last for decades).
The favorite tool of the administrative state is prior restraint on speech and trade. Rather than simply codify acts which are unlawful, regulators create restraints on commercial speech and trade that embrace the law-abiding. Because those intent on criminal acts by definition violate the law, regulation only encumbers the law abiding by restricting freedom of choice. Thus, at root, the administrative state relies upon tools that destroy innovation, restrict market options, and reduce competition.
The solution to this problem is to eliminate the administrative state in favor of existing statutory law which already makes unlawful those acts which cause injury to others. Prior restraint is the bane of freedom essential to progress yet it is the essence of administrative law. Prior restraint enslaves the law abiding.
We should eliminate all law that fails to conform to the test for “rightful liberty” given us by Thomas Jefferson. In a letter to Benjamin Rush dated April 21, 1803, Jefferson wrote: “Of liberty I would say that in the whole plentitude of its extent, it is unobstructed action according to our will. But rightful liberty is unobstructed action according to our will within limits drawn around us by the equal right of others. I do not add ‘within the limits of the law,’ because law is often but the tyrant’s will, and always so when it violates the rights of an individual.”
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© 2015 Jonathan W. Emord - All Rights Reserved
Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable eight times, seven on First Amendment grounds, and is the author of the Amazon bestsellers The Rise of Tyranny, Global Censorship of Health Information, and Restore the Republic. He is the American Justice columnist for U.S.A. Today Magazine and joins Robert Scott Bell weekly for “Jonathan Emord’s Sacred Fire of Liberty,” an hour long radio program on government threats to individual liberty. For more info visit Emord.com, join the Emord FDA/FTC Law Group on Linkedin, and follow Jonathan on twitter (@jonathanwemord).
Almost all federal law is not the product of those we elect but, rather, of the unelected heads of the federal administrative agencies.