Daily Journal: Executive Order adds historic Regulatory Bill of Rights

May 29, 2020 | By ALISON SOMIN

Last week, President Donald Trump signed an executive order with far-reaching implications for regulatory agency enforcement procedures and for the rule of law generally. Most press attention has focused on provisions of the order encouraging temporary regulatory suspensions to promote economic recovery. Although the economic relief provisions are important, the Regulatory Bill of Rights found at Section 6 of the Executive Order on Regulatory Relief to Support Economic Recovery has even greater long-term significance.

Since at least the Magna Carta, the rule of law has been understood to ensure due process protections against arbitrary government action. In the U.S. Constitution, this principle is most clearly expressed in the Fifth Amendment’s due process clause, which provides that no one may be deprived of life, liberty or property “without due process of law.” Alas, agencies have often skirted this constitutional rule. These “due process deficits” in agency procedures can devastate people’s lives. 

The executive order commands agency heads to consider 10 basic due process principles and to revise their procedures and practices to comply with them. This 10-part Regulatory Bill of Rights mirrors the Constitution’s Bill of Rights that enshrines 10 of our most fundamental individual rights into positive law:

  1. The government, not the enforcement target, must bear the burden of proving alleged violations of law. 
  2. Administrative enforcement should be prompt and fair.
  3. Administrative adjudicators should be prompt and fair.
  4. The government should provide favorable relevant evidence in the agency’s possession to enforcement targets. 
  5. All rules of evidence and procedures should be public, clear and effective
  6. Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law. 
  7. Administrative enforcement should be free of improper government coercion. 
  8. Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond. 
  9. Administrative enforcement should be free of unfair surprise. 
  10. Agencies must be accountable for their administrative enforcement decisions.

Unfortunately, agencies have all too frequently failed to abide by these “fairness” principles, as the order appropriately calls them. A recent report by the Pacific Legal Foundation documents nine of our cases in which agencies failed to give fair notice to enforcement targets, used unfair evidentiary rules, threatened unreasonable or coercive penalties, delayed or denied access to the courts, and evaded accountability to voters.

Take, for example, Mike and Chantell Sackett, who bought a lot to build their dream house in Priest Lake, Idaho in 2005. Although the lot they selected was part of a residential subdivision along a paved road, the EPA ordered them to shut down construction because their private property was supposedly a federally protected wetland.

The Sacketts repeatedly requested an explanation for the federal assertion of control over their land. It took seven months and was woefully incomplete. The Sacketts were told that if they failed to comply with an EPA compliance order to restore the native vegetation, they could face fines of up to $75,000 per day — more than three times what they had paid for the property. Their lawsuit finally reached the Supreme Court, which unanimously ruled that the Sacketts had a constitutional right to contest the compliance order in court. More than 12 years later, it is still unclear if they can build anything on their land, but the EPA finally dropped the compliance order.

The Sacketts’ case presents three due process deficits. First, EPA’s compliance order required the Sacketts to pursue expensive mitigation measures without notice of an investigation or opportunity to contest the orders. Second, EPA sought to deny them access to court to review EPA’s claim of jurisdiction over their property. Finally, the Sacketts were subject to crushing, runaway fines, disproportionate to any alleged wrong.

Similarly, Kevin Pierce runs a peat harvesting enterprise in East Grand Forks, Minnesota. He applied to a state agency to harvest peat on land his family-owned company leased. The U.S. Army Corps of Engineers then intervened and told him that his planned project required a federal permit because of its supposed “substantial nexus” to navigable waters — even though the nearest navigable body of water was 120 miles away. The Army Corps threatened penalties of $37,500 per day if peat harvesting began without a federal permit. 

After four years of legal struggles, including a fight to obtain judicial review of his case, a unanimous Supreme Court opinion vindicated Pierce. In the process, his family business was almost destroyed. His story shows two common due process deficits: the threat of crippling penalties that held up company plans for years, which were disproportionate to any harm caused, and the initial denial of impartial review of his case or access to court.

If properly implemented, the ten principles set forth in the Regulatory Bill of Rights will go a long way toward stopping arbitrary and unfair governmental action. All Americans should celebrate this revival of rule of law principles.

In a 46-page comment submitted to the Office of Management and Budget last March, PLF documented examples of the above described due process deficits and made recommendations for concrete measures the executive branch could take to uphold due process — recommendations that substantially overlapped with those in the order.

This op-ed was originally published by DailyJournal on May 29, 2020.