I recently read Over Ruled: The Human Toll of Too Much Law, by U.S. Supreme Court Justice, Neil Gorsuch and Janie Nitze. In his book Justice Gorsuch lays out what he sees as the unintended consequence and over-reach of agency power as a result of administrative agency creation and the explosion of agency rulemaking and their subsequent rules.

 Justice Gorsuch begins with the history of the creation of administrative agency, their laws and the rulemaking process and how those creations have grown into literally hundreds of thousands of volumes of U.S. Codes and Regulations that no citizen could possibly have full knowledge of. 

Justice Gorsuch tells of various real-life cases in which small businesses, business owners, individuals and non-profit organization have found themselves in litigation crisis, paying life savings to clear their names and organizations of fines for seemingly innocuous violations: A handful of fish out of hundreds on a small business fishing boat one-inch off of the required size limit, cats in Ernest Hemingway’s museum home not properly contained inside a high enough fence, a magician who doesn’t have the proper “emergency plan” for his pet prop rabbit in case a hurricane should hit his home (never mind that if the magician was raising the rabbit for food he could just kill it without any plan at all). These are just a few examples of the bureaucratic quagmire that we as a nation have created under Congressional leadership.

Congress creates the agencies to monitor and enforce acts and activities of specific industries and then empowers those agencies with the creation of rules that (would) enforce the over-arching law created by the legislature.  While a rulemaking process does, in most cases, require stakeholder input to weigh in on these proposed rules, they often go unnoticed by the average citizen.  Unfortunately, however, it is the average citizen who (often) ends up getting fined or even worse, is found to have committed a crime, making him or her a felon for such violation. Not only does enforcement of these rules and laws take a financial and emotional toll on those who receive the fines, but U.S. citizens pay the bill for the millions of dollars spent by the agencies and the attorney general, prosecuting the individuals or businesses and defending the subsequent appeals.

Like me, I am sure most readers would wonder “why in the world would our government spend so much time prosecuting this ONE type of case?  This certainly could NOT have been what our government intended when it created this agency, this law or this rule.”  But it turns out that is exactly what has happened.*  While we are left to wonder how much further the bureaucratic machine can take enforcement of some of these laws and rules, we should take particular care to know what it is our legislators are creating, and what it is these administrative agencies have the power to do. 

In conclusion, I highly recommend Over Ruled to anyone interested in what powers our government really has, what happens when we take for granted what is being created in the House and Senate and what happens when enforcement of these laws seems to go farther than what anyone might have intended, with almost no way to reach down and pull it back from the deep hole created by well-meaning bureaucrats. 

* In my first ten years in the practice of law, I worked in the energy and utility industry, representing large industrial energy users in their interests before the Public Utilities Commission of Ohio (PUCO) when utility companies would ask for rate increases and other regulatory relief before the PUCO.  At a separate firm, I also represented large utilities on federal regulatory matters before the Federal Energy Regulatory Commission (FERC).  I have also represented a number of businesses in administrative actions and appeals in the state of Washington, including at the Washington State Court of Appeals since the creation of my private practice in Maple Valley, WA.