This article was posted on Sunday, Jul 01, 2018

The regulatory state began last century during the New Deal, inspired by earlier Progressives who believed that individualism, capitalism and the Constitution were obstacles to prosperity.

They imagined a future in which government “experts”, (i.e., administrative agency bureaucrats), would lead and control the economy, subordination economic freedom and private property rights to what they perceive to be the needs of the nation.  A hydra of federal agencies (and state counterparts) impose that vision, not merely enforcing laws made by Congress, but issuing regulations of their own with power to adjudicate and punish violations.  Judges have acquiesced, even abdicated, to this fusion of executive, legislative and judicial functions – despite its tension with our constitutional separation of powers.

The English Historian, Lord Acton told us that “power tends corrupt, and absolute power corrupts absolutely.”  As those who have been battling government agencies for many years know, it can be added that administrative power corrupts both the governing and the governed just the same.  As bureaucracies grow, so too does their reach.  As their reach grows, freedoms diminish.  And as freedoms wither, people are tempted to compromise their rights in order to survive.

There is very little that can be done today with first obtaining multiple permissions from an army of bureaucrats.  From trimming trees, to driving a moving truck, to giving advice over the phone, Americans need licenses to work and those licenses are often nearly impossible to obtain.  If Americans forget to seek the proper permissions in advance, or proceed in ignorance, they can suffer fines large enough to bankrupt a small nation and prison sentences long enough to read War and Peace many times over.

When a bureaucracy has the unfettered power to tell people what they can do or not do with their property, landowners will in thrall to their government.  When a regulatory board holds power over one’s ability to earn a living, then an individual’s very sense of identity can be at the mercy of the state.  If the power to regulate is married to an arbitrary set of guidelines – or no guidelines at all – it is the very definition of arbitrary power.  And from arbitrary power corruption is born.

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This isn’t the obvious corruption of outright bribery – but a more insidious kind – corruption where power is yielded for the sake of power, and demands are made simply because there is nothing to stop government from being unreasonable.

Take, for example, these Pacific Legal Foundation (PLF) clients.  Raleigh Bruner was told he couldn’t operate a moving company without first getting permission from the state’s existing moving companies.  Most people would have driven their business elsewhere.  And when the Nollans were told to give up one-third of their property in order to build a family home, most people would have given up and given away what was rightfully theirs.  When the EPA came knocking at the Sacketts’ door demanding that they give up on their plans to building a home, the EPA counted on the Sacketts to give up their home rather than face millions of dollars in fines, especially because no one alive today can understand what is a protected wetland and what is ordinary dry land.  Likewise, when the Army Corps of Engineers told John Duarte that his plowing had created “mini-mountains” in a protected wetland, the Corps was hoping to get tens of millions of dollars in fines, plus some wetlands.  Why?  Because they thought they could.

But PLF won’t let this happen without a fight.  American cannot succumb to the temptation to give into the corruption and let its rights disappear.  Not only is PLF taking on and winning these individual cases of abuse, it is also working to establish the legal precedents that will take down the power of a regulatory state run amok.  A free society cannot tolerate corruption if it expects to remain free.


James S. Burling is the Vice President for Litigation of the Pacific Legal Foundation (PLF).

Founded in 1973, PLF litigates cases nationwide to vindicate the rights fundamental to a free society. With nine consecutive U.S. Supreme Court victories and counting, PLF fights on the front lines, ensuring individual liberty is secure. Donor-supported Pacific Legal Foundation ( is the leading watchdog organization that litigates for limited government, property rights, individual rights, and free enterprise, in courts nationwide. PLF represents all clients free of charge.  For more information, visit, call (916) 419-7111 or write PLF at 930 G. Street, Sacramento, CA 95814.