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Policy: Law

It's time to bring back remedies for bureaucratic abuse

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Opinion,Op-Eds,Tea Party,IRS,EPA,Eric Holder,Law

Noted constitutional law professor Jonathan Turley recently testified before the House Judiciary Committee, saying, “we are in the midst of a constitutional crisis with sweeping implications for our system of government.”

That sounds almost like what Tea Party icon and constitutional expert Sen. Mike Lee, R-Utah, would say. Turley, however, voted for President Obama.

The massive shift in authority to the executive branch did not begin with Obama's abuse of the sEPAration of powers, but “has accelerated at an alarming rate,” explained Turley.

He also noted how “a fourth branch has emerged in our tripartite system that is highly insulated and independent from Congress.”

Turley was referring to government administrative agencies often known by their alphabet-soup acronyms like the IRS, EPA, NSA and so on.

Lee, Turley’s political opposite, has described administrative agencies as acting with “bureaucratic despotism.”

Government bureaucracies have been given enforcement powers combined with quasi-legislative and adjudicatory authority. That is what James Madison called in Federalist 47 “the very definition of tyranny.”

Bureaucrats are easily contemptuous of legal restraints when they lack sufficient consequences for their bad acts. It’s human nature. Remedies against some bureaucrats exist, but are too few and too weak.

Despite an inspector general's findings of criminal conduct at the Internal Revenue Service in releasing confidential tax information about conservatives, Attorney General Eric Holder decided not to prosecute anyone.

Congressional oversight and even public humiliation don’t work. After the IRS was exposed as shamelessly abusing Tea Party applicants seeking 501(c)(4) "social welfare" status, it decided to double down by issuing proposed regulations to censor those groups — and more.

The Environmental Protection Agency violates property rights with regulatory takings under the guise of clean air and water enforcement. It has also created an absurd ban on wood-burning stoves.

Hardly a day goes by in which the Washington Examiner and other media outlets that are professionally circumspect of government don’t report on administrative abuses.

The solution may lie in the past. In America’s first 100 years, as federal bureaucracies were getting a toehold in our tripartite governmental system, citizens had judicial remedies against individual bureaucrats in state courts.

The remedies were based in common law suits such as trespass and replevin to recover goods obtained by government acting in excess of statutory and constitutional authority.

In his book Creating the Administrative Constitution, Yale law professor Jerry Mashaw described how such private remedies not only provided relief, but had the added impact of making bureaucrats think twice before over-reaching.

Congress “liberally sprinkled fines, penalties” and even criminal sanctions in laws establishing our early bureaucracies, providing accountability — consequences — for bad acts by bureaucrats who did not have “special immunity,” Mashaw tells us.

As agencies grew in number, size and scope in the 19th century, however, Congress steadily abdicated more lawmaking power to them.

Soon, agencies had administrative adjudication authority. Courts became more deferential to agencies and abdicated on remedies and issues such as due process. These standards were widely codified in 1946 under the Administrative Procedure Act.

Bureaucratic disrespect for individual rights has always been present in state and local governments as well, but the Obama administration’s bad example seems to have had a trickle-down effect.

Local governments have become adept at violating property rights through zoning powers. Zoning officials frequently infringe on constitutional rights and our most personal decisions regarding our homes and other private property.

In Fauquier County, Va., one zoning official charged farmer Martha Boneta with violating the law for having a birthday party for eight 10-year-old girls without a permit.

In response to this and similar abuses, Virginia Del. Bob Marshall introduced legislation that provides a good model of consequences. Its application beyond keeping zoning officials in check should be apparent.

Marshall’s HB 1219 includes fines and awards of legal fees against local governments that abuse zoning power to violate constitutional rights.

Officials who willfully violate this proposed statute and exceed statutory authority could be personally liable.

The bill also has whistleblower protections for government employees, who are often bullied into carrying out dirty deeds for their political bosses.

The rule of law is supposed to provide consequences for acts that harm others. It is past time to increase the consequences for bureaucrats through more remedies that can be lawfully sought by their victims.

Mark J. Fitzgibbons is co-author with Richard Viguerie of "The law that governs government."
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