The Wall Street Journal: It’s about time we got a Bill of Rights for the regulatory state


One of the first actions of Congress in 1789 was proposing a bill of rights that limited government power and guaranteed the liberties of the American people. Power has since shifted from Congress to an unaccountable regulatory state, but there is no equivalent bill of rights to limit its power or protect liberty in the bureaucratic process.

President Trump last week issued an executive order, “Regulatory Relief to Support Economic Recovery.” Its temporary relief provisions have attracted much attention, and deservedly so, but an important part has been overlooked. The executive order includes a regulatory bill of rights that identifies “principles of fairness in administrative enforcement and adjudication” and commands agencies to revise their procedures accordingly.

Here are some of the principles: You should be presumed innocent unless proven guilty of violating a regulation. Agency enforcement should be prompt and fair, not needlessly drawn out. Disputes should be decided by neutral judges, not agency enforcement officials. Agency rules of evidence should be clear and fair, and agencies shouldn’t withhold evidence that is potentially exculpatory. Threatened penalties should be proportionate to the alleged wrong. Agencies shouldn’t coerce you into giving up your rights. Agencies shouldn’t engage in practices that cause unfair surprise. And agency practice should promote, rather than evade, accountability.

These principles may seem basic, but federal agencies have too often failed to uphold them, as we explain in a Pacific Legal Foundation report released this month, “The Regulatory State’s Due Process Deficits.” Through nine case studies of enforcement abuse involving our foundation’s clients, we show how agencies withhold fair notice, use biased rules of evidence, threaten excessive penalties to coerce people into giving up, resist scrutiny by courts and evade democratic accountability.

Consider the Environmental Protection Agency’s treatment of Mike and Chantell Sackett, who in 2007 were attempting to build their dream home in Priest Lake, Idaho. As work began, the EPA without notice claimed their lot was a federally protected wetland and demanded they abandon their plans for a home. Large daily fines would pile up if they failed to comply. When the Sacketts protested, bureaucrats refused to provide evidence to support their claims and attempted to deny the Sacketts their day in court.

The Supreme Court ruled unanimously in 2012 that EPA orders alleging Clean Water Act violations are judicially reviewable. But the foot-dragging had its intended effect, and the potential fines ultimately grew to more than $150 million. Only after 12 years of litigation and public criticism did the EPA relent and drop the order and the fines. It still isn’t clear whether the Sacketts can build anything on their property. Our appeal to clarify is pending at the Ninth U.S. Circuit Court of Appeals.

Andy Johnson was accused of violating the Clean Water Act by building a pond to water his daughter’s horses. After the EPA dragged the investigation out for more than two years, Mr. Johnson challenged the agency’s actions. Only then did he learn that EPA officials had never bothered to investigate whether his pond was subject to federal regulation. Instead, the agency threatened him with $20 million in fines after a cursory review of Google Maps, which suggested a connection to a navigable water, though the connection didn’t in fact exist. Once exposed to scrutiny by an independent court, the agency backed down, allowing Mr. Johnson to keep his pond and pay no fine.

Navy veteran Joe Robertson wasn’t so lucky. He was convicted in 2016 of violating the Clean Water Act for digging a few ponds near his remote Montana home to provide water in case of fire. He spent 18 months in federal prison and was ordered to pay $130,000 in restitution. The Supreme Court overturned the case in 2019, and later that year the Ninth Circuit tossed his conviction. But Robertson died shortly after completing his prison sentence.

The problem isn’t that agents occasionally cross lines in pursuit of clear villains. Bureaucrats have stacked the process against ordinary people even in mundane cases. These problems aren’t isolated to the EPA. Our report details abuses by the U.S. Fish and Wildlife Service, the Food and Drug Administration and others.

The First Congress included in the Bill of Rights a guarantee that no one would be deprived of life, liberty, or property “without due process of law.” The protections inherent in this clause are vital to shielding Americans from arbitrary or abusive government action. The Regulatory Bill of Rights promises the same protections against the regulatory state, protections that are long overdue, as our clients can attest.

This op-ed was originally published by The Wall Street Journal on May 26, 2020.