Just before the Memorial Day weekend, the Obama administration released 2,300 new regulations, and a new proposed water rule that has states howling mad, but a prominent Washington author and scholar is offering a blueprint to rein in the federal regulatory state through organized civil disobedience.
Charles Murray is the W.H. Brady Scholar at the American Enterprise Institute. He is also the author of several high-profile and controversial books, including “Losing Ground,” “The Bell Curve,” and “Coming Apart.” His latest work is “By the People: Rebuilding Liberty Without Permission.”
The book concludes that civil disobedience on a grand but peaceful scale is needed to shake the government off the backs of Americans because our political and legal systems and even our Constitution are insufficient to bring the government back under control.
“The system is paralyzed in ways that are not going to be fixed by electing the right Congress, by getting the right five people on the Supreme Court or by electing the right president,” said Murray.
“The regulatory state, which is my target for this, is largely beyond the reach of any of those branches of government. That’s not a wild-eyed statement. That’s pretty much mater-of-fact statement of the way the regulatory state functions,” he said.
While the growth of government spans over many decades, Murray says much of the unchecked power of federal regulators can be traced to a brief span in the Franklin Roosevelt administration.
“It all happened in a period of about five years, from 1937-1943, where you had half a dozen key Supreme Court cases which very explicitly said, ‘We are now going to adopt a new interpretation of what the text of the Constitution says and this new interpretation unleashes the government from the strict limits that the Constitution previously put on them, said Murray.
He says a 1943 case changed the regulatory course of America forever.
“The Supreme Court said it’s okay for Congress to write legislation that has a high-minded purpose and vague words for saying what that purpose is and then leave it up to the regulatory agency to develop regulations independently of any further legislative guidance on how to implement this high-minded objective,” said Murray.
“That was the moment at which the regulatory state basically got its declaration of independence. It took a couple of decades to take off, but that’s where it started,” he said.
And that is why Murray believes Americans should aim organized civil disobedience at the federal regulatory state, but he says it has to be done intelligently because some oversight is needed in society.
“Some regulation is appropriate and necessary. I’m happy to see regulations of coal mines so that the tunnels that miners go into re safe and are not going to collapse. There are a variety of other regulations I have no intention of asking people to ignore,” said Murray.
However, Murray says there are plenty of other regulations which serve no constructive purpose other than to erode the freedom of honest, hard-working Americans.
“I’m really focused on the regulations that get in the way of ordinary Americans, small business people, homeowners, community groups – which get in the way of them living their lives as they see fit, providing goods and services, solving community problems in ways that are essential to our civic culture,” said Murray.
Many on the right believe the recent Waters of the United States, or WOTUS, rule proposed by Obama’s Environmental Protection Agency fits into what Murray just described. The administration says the rule is designed to protect wetlands and waterways, but critics say it will amount to a “regulatory and economic hell” for farmers and business owners because it gives the government authority over virtually any collection of water, from rivers to small streams and possibly even puddles.
One of the most controversial regulations among the 2,300 unveiled before Memorial Day would require reductions in ozone emissions. Again, the administration cites environmental concerns, while the National Association of Manufacturers claims it could be the costliest in U.S. history. It estimates businesses could lose up to $140 billion per year if the regulation goes through.
While those rules bother Murray, he offered examples of much simpler regulations that infringe on small numbers of people but that he says are just as offensive.
“People doing these things are suddenly told, ‘Oh, you can’t do that. You’re breaking the law. You owe us a fine. You cannot organize this little playground you want in your neighborhood. You can’t provide the service that your business provides in the way you want to provide it,'” he said.
Enter Murray’s weapon to fight back on a large scale.
“I’m not worried about big corporations. I’m not worried about grand themes. I want to lift the burden of these pointless, picayune regulations from ordinary Americans,” said Murray. “To do that, I think what we need it a large legal defense fund that comes to their aid.”
Murray would call it the Madison Fund and believes it would need to be staked with about $200 million to be truly effective. He says the strategy is to stand up for harassed Americans and take overreaching bureaucrats to court.
“They are technically guilty of a regulations. The regulation’s really silly, but they’re technically guilty. The Madison Fund says to the bureaucracy, ‘We are taking this person’s case. We are going to litigate it to the max even though this person technically violated the regulation. We’re going to make your life miserable. We are going to drag out the litigation as long as we can. When you finally find the person guilty and levy a fine, we’re going to reimburse the fine,” said Murray.
The goal, he says, is not to gum up the courts but to make regulators think long and hard before trying to enforce ridiculous regulations.
“If you have a fund that continually does that and does that with a lot of cases, hundreds or even thousands of cases, it’s not very long if you’re a bureaucrat in a regulatory agency and somebody has violated a regulation that did no harm to anybody and then you’re told the Madison Fund is taking that case, you have to say to yourself, ‘Do we really want to go through with this,'” said Murray.
Another major focal point for the Madison Fund would be to increase public awareness of regulations ruining people’s lives and shifting public opinion toward more freedom. But to do that, says Murray, cases will have to be chosen very carefully.
“You don’t take a case if you’re the Madison Fund unless you are confident that that publicity will get the overwhelming support of the American people. So whether they are moderate Democrats or moderate Republicans, when they read about that case, they will say, ‘I’m on the side of the citizen that the government is going after,” said Murray.
But before you start looking for the Madison Fund online, be aware that it does not exist and Murray has no intention of starting it.
“I write books. I don’t run funds,” said Murray. “I really hope somebody picks up the ball but I’m old enough to be quite confident that I know what I can do and what I can’t do. Being the manager of a big fund is one of the things that I can’t do,” he said.
If an organized legal fight against the regulatory state were to achieve some success, Murray says it might pave the way for other avenues to reform government for the better but he also sees emerging technology and communications as the newest weapons in confronting government. Using the explosion of businesses like Uber, Murray says more power is returning to the individual.
“Uber is just the leading edge of a wide variety of things that are enabled by new technology, that provide superior services, that work around the government. I have no hope of making our government responsive and trim and flexible. It’s not going to happen. I do have a lot of hope that government is going to become increasingly irrelevant to our lives,” said Murray.
