This article was posted on Friday, Jun 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. 

When President Franklin Roosevelt promoted early plans for the regulatory state, he suggested it would benefit “the forgotten man at the bottom of the economic pyramid.”  In fact, the system crushes the true forgotten man; those paying for the centrally planned schemes, particularly the independent, the creative and the entrepreneurial, who are stifled at every turn by bureaucracy that values authority and permission over innovation and liberty.  Those are the people whom Pacific Legal Foundation’s (PLF’s) programs defend and set free.

Property Rights

One of America’s most cherished constitutional guarantees is the promise that no one may be deprived of life, liberty or property without due process of law.  Many people know of the due process protections for people accused of a crime, such as the presumption of innocence and the right to counsel.  But adjudication processes by regulatory agencies are different and sometimes result in property owners being treated worse than criminals.

- Advertisers -

In criminal law, due process works to ensure that innocent people are not convicted of crimes.  Violations of due process may lead to evidence being thrown out, or convictions overturned on appeal.  Though no one likes to see guilty defendants walk free on “technicalities,” when it happens we can take comfort in the constitutional protections that demand we sacrifice convictions in some instances to ensure a just criminal justice system for the country as a whole.

But property owners don’t enjoy those same protections when regulatory agencies begin enforcement actions against them.  As seen in the table below, property owners operate at a serious disadvantage when their conduct is challenged by agencies.

Defendants in Criminal Proceedings           Property Owners in Agency Actions

Are presumed innocent Are presumed in violation by the time they are contacted by the agency
Are provided counsel if they cannot afford it Must hire their own lawyers
Are informed of charges against them Are investigated in secret
Review all evidence collected against them Do not have access to all the evidence collected against them
Confront their accusers in a court of law May not be granted a hearing by the agency
Have a right to be tried by a jury of their peers May be heard by an administrative judge, not a jury

PLF client John Duarte knows firsthand just how little due process property owners are afforded. Other than a single brief phone call from the Army Corps of Engineers, the federal government gave Duarte no warning of the cease and desist action for tilling his field to plant wheat, allegedly in violation of the Clean Water Act.  The agency pursued Duarte without giving him access to the evidence against him or an opportunity to present any favorable evidence in his own defense.  When he requested a hearing, they ignored him.  Agents intentionally destroyed portions of the record, meaning that some evidence used against John Duarte has never been seen by anyone outside the agency that found him guilty.  The cease and desist order deprived John of the use of his company’s land and threated a potentially devastating penalty against him, placing hundreds of jobs at risk.

Property rights is one of the cornerstones of American freedom and liberty.  The founders thought it sufficiently important that they extended due process protections to three things, life, liberty and property.  The courts should take these protections as seriously for property owners as they do for accused criminals.


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.