February 20, 2017

Restore The Courts’ Role As Defenders Against Reckless Regulations

By James S. Burling Vice President for Litigation

If President Trump is going to be genuinely successful in reforming environmental bureaucracies and bringing their regulations into line with common sense and the law, he’ll need help from beyond just the halls of Congress and the cabinet offices of his own executive branch.

Ultimately, the third branch — the judiciary — must rediscover its intended role as an energetic watchdog over government, including unelected bureaucracies. In filling vacancies throughout the federal judiciary, Trump should look for men and women who will not shrink from striking down regulations and other government actions that restrict core liberties, such as property rights and economic freedom.

They should be people who agree with James Madison, in Federalist No. 10, that “the first object of government” is defending the people’s liberties — not protecting the bureaucrats’ prerogatives.

Indeed, the framers made the courts the final guardians of our rights, the last resort for liberty. The judiciary is given the authority to act as a neutral player between government and the rest of us.

As early Chief Justice John Marshall put it, “It is emphatically the province and duty of the judicial department to say what the law is.” Indeed, the power of the judiciary to interpose itself between individuals and their government is a key to liberty.

In the 17th century, there were tremendous and often violent struggles for power between the king of England, the Parliament, and the courts. The great victory for liberty that came out of those struggles was an understanding that the king could not command his subjects or pass judgment upon them alone without the law adopted by Parliament and trials by independent judges.

With the reduction of the monarchy’s power, the king’s own courts, such as the infamous Star Chamber, were abolished. Instead, an independent court system — with the ability to say “no” to the crown — was strengthened and became an essential element of the British Constitution and ultimately our own.

Thus, the courts have had a long and storied tradition of protecting the liberties of the people against all manner of attempted executive usurpations.

One of the first great attempts to assert the liberties of the American colonists against British tyranny came in the famous court challenge to the crown’s so-called “writs of assistance” by lawyer James Otis in 1761.

So great was this trial that John Adams, who watched it as a young man, said that it gave birth to the American independence movement. What Otis did was to defend American colonists against the British breaking down American doors on the merest of pretext.

Citing a long line of British precedent, Otis declared that “a man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle.”

And yet, we should wonder whether this is true in the early 21st century. With the rise of the so-called administrative state — the legion of bureaucrats and hundreds of thousands of pages of federal, state and local regulations that touch on every breath we take — the courts are taking a back seat to power.

Regulators declare vast swathes of land to be wetlands, untouchable without permits. Neighborhoods are razed to make way for industrial projects, often of dubious value. The sheer magnitude of regulations makes it nearly impossible for the ordinary person to know what the law is, and quite impossible to obey it at all times.

And now, instead of protecting us, our courts are just giving up, and simply deferring to administrative rules and regulations of mind-bending complexity.

The United States, however, was not founded upon principles of deference. The structure of the government was instead designed to establish vigorously competing branches of government. Each branch has an interest in preventing the grabbing of power by the other branches.

As Madison wrote, “There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates.”

But this fundamental vision of the proper role and structure of government began to change over a century ago. Government power, instead of being the chief protector of our liberties and property, transformed into the chief redistributor of our property at the expense of our liberties.

That great progressive Woodrow Wilson left no doubt of this when he wrote that “all idea of a limitation of public authority by individual rights be put out of view.”

Wrong. When faced with an excess of power by the king, the British people fought back and made the courts central to preserving liberty. The American colonists did the same when they threw off the yoke of King George. And now, in the face of an unprecedented rise of big government, it is time for our courts to do the same.

Published by Investor’s Business Daily

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