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Regulation: The Perversion of Law and Morality

By Dale B. Halling

July 13, 2017

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A regulation is a governmental rule that is not passed by the normal procedures required for laws. In the United States, this means it is a rule that was not passed by the House and Senate and then signed by the President (at the federal level). These rules are inconsistent with the Constitution and also with Parliamentary Governments.

This is part of a series of articles exploring what the law would look like under an Objectivist government, one in which natural or individual rights were protected as promised by the Declaration of Independence. Remember, the only right that the people give up to the government is the right of delayed retaliatory self-defense.

Generally, under Natural Rights we would consider all regulations as inconsistent with a proper government. But what is regulation? It seems like a dumb question; we all know what regulations are. However, when you dig deeper the question becomes more complex. Are contracts regulation? What about tort laws? What about laws on recording deeds for land? Are these different than laws requiring registration of cars? Some people have even argued that patents and copyrights are regulations.[1] Unfortunately, the dictionary definition of regulation is not very helpful in resolving the difference between a regulation and a law. Here is a standard dictionary definition of a regulation (Dictionary.com):

“A law, rule, or other order prescribed by authority, especially to regulate conduct.”

According to this definition, laws and regulations are the same thing. However, I do not think that is what people mean by regulations, ­ at least in a legal/political sense. In the United States, the regulatory state is usually dated from the passage of the Interstate Commerce Act of 1887. Most of us associate regulations with some sort of alphabet agency that employs large numbers of bureaucrats. The Interstate Commerce Act of 1887 created the ICC (Interstate Commerce Commission), whose initial job was to set railroad rates and later to completely oversee all operations of all common carriers in the United States. These rules that the ICC imposed on all common carriers are commonly considered regulations.

Procedural Definition of Regulation

Most of us associate regulations with some sort of alphabet agency that employs large numbers of bureaucrats.

One definition of a regulation is a governmental rule that is not passed by the normal procedures required for laws. In the United States, this means it is a rule that was not passed by the House and Senate and then signed by the President (at the federal level). This is the standard legal definition. It is a useful definition as it points out that these rules are inconsistent with the Constitution and also with Parliamentary Governments.

Regulatory agencies act as the rule maker (legislature), the enforcer of their rules (executive), and the judge (Judiciary). This makes them extremely dangerous and unconstitutional. The first sentence of the United States Constitution is:

“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Regulatory agencies also pull a sleight of hand and characterize their rules as civil law (as opposed to criminal law), which means that the Bill of Rights does not apply. The EPA (Environmental Protection Agency) has even argued that the Bill of Rights, including the 4th and 5th amendments, does not apply to the EPA ever (criminal or civil) and has won that argument in court.

Regulatory agencies also pull a sleight of hand and characterize their rules as civil law (as opposed to criminal law), which means that the Bill of Rights does not apply. The EPA (Environmental Protection Agency) has even argued that the Bill of Rights, including the 4th and 5th amendments, does not apply to the EPA ever (criminal or civil) and has won that argument in court. This was in a case in which the EPA had applied a $32,500 fine per day on a middle-class family, the Sacketts.[2] The Supreme Court reviewed this case and did not throw out the EPA’s contention that the Bill of Rights does not apply to the EPA. Instead the Supreme Court ruled that the EPA’s action was a final action and therefore subject to review by Article 3 courts (the only federal judicial branch allowed by the United States Constitution).

The combining of all three branches of government into a single entity was the very definition of tyranny according to James Madison.

The combining of all three branches of government into a single entity was the very definition of tyranny according to James Madison.[3] It was also part of what the American Revolutionary War was about. For instance, the Declaration of Independence states “He (King George III) has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.”

Congress has proposed some very weak measures to rein in regulatory agencies, specifically the REINs Act. This Act allows for congressional oversight of regulations that would cost $100 million to the economy (see Regulatory Reform: REINS Legislation) per annum. This does not solve the Constitutional problems with regulatory agencies and provides no direct relief to people attacked by regulatory agencies, such as the Sacketts.

I propose legislation with a broader reach that would provide direct relief to people like the Sacketts, entitled Regulatory Bill of Rights. It requires agencies prove that the regulation achieves its purpose and that it is the least expensive way of doing so, as defense against any regulatory action. There are numerous stories of regulatory rules that do not even achieve their goals. Here is an EPA ruling so absurd that its only purpose seems to be to prove that environmentalists value everything above human life.

“One of the most amazing rulings to come out of Browner’s EPA was a letter sent to the city of San Diego, ordering them to stop treating the sewage pouring into the Tijuana River Valley on the grounds that human actions were disturbing the “sewage-based ecology” of the affected estuary—ignoring the fact that the sewage posed a health threat to human beings (whose “ecology” obviously wasn’t considered as important by the EPA).”[4]

It is also a defense against any regulatory rule, in my proposed Regulatory Bill of Rights, that it is inconsistent with any other regulatory rule. For instance, OSHA required backup alarms in commercial vehicles that conflicted with the EPA’s noise pollution requirements.

The proposed Regulatory Bill of Rights provides economic incentives for people (average citizens) to find less expensive regulations that achieve the same goal as the regulations proposed by Agencies.

Objective Definition of Regulation

I do not think the procedural definition of regulation is what most people mean by regulation. If Congress and the President pass a law that every car owner must report the tire pressure on all their cars by 8 a.m. in the morning every day, I think most people would think this is a regulation. The essence of what is a regulation is whether it requires preemptive action to prevent some potential harm.

Under standard common law a person was not required to take action to prevent a potential future harm. A company could be charged with negligence if their poor design resulted in the injury, but only after the injury (or other harm) had occurred. A car manufacturer, for example, could not be required to put in certain types of brakes or required to undertake certain types of testing under the position that it might prevent future accidents. Probably the best example of this idea under common law is the Good Samaritan rule, which states that you do not have a duty to offer assistance to people in distress. For instance, you do not have a duty to help pull people out of a burning vehicle and you cannot be charged with a crime for not helping them.

This is related to the common law principle that you are innocent until proven guilty. All regulations assume that you are guilty until proven innocent.

This is related to the common law principle that you are innocent until proven guilty. All regulations assume that you are guilty until proven innocent. They assume a builder will commit negligent fraud endangering the building’s occupants, unless there are building codes and building inspectors. They assume the bicycle manufacturers will endanger lives by not putting retro-reflectors on the pedals­ (a regulation that makes no sense because the first thing any serious bicyclist does is replace the pedals with clip-in pedals that do not and cannot have retro-reflectors).

This idea that the law can require people to take action who have not committed a crime[5] is antithetical to freedom and forms the very basis of the regulatory state. Based on this, I propose that the proper definition of a regulation is: A government rule that requires people who have not committed a crime (or as the end result of a civil action) to take positive action to prevent a potential future harm. Using this definition, we can look at the questions posed in the second paragraph of this essay.

Are contracts regulation? No. Contracts are an agreement between two private parties, so they cannot be regulations.

Are tort laws regulation? In general: no. Tort laws do not require private parties to take preemptive action.

Are laws requiring recording of deeds for land regulation? No (generally). At least under common law you are not required to record your deed for your land. (However, failure to do so will undermine your evidentiary standing if you are involved in a fraudulent sale lawsuit. Note: if the fees are higher than necessary to perform the recording function, or if the process is more complex than necessary to perform its function, then this might be considered a regulation).

Are laws requiring registration of cars regulation? Yes. Unlike recording of deeds for land, you are required to register your car. The original excuse for these laws was the same as recording deeds; to more securely establish ownership in case of theft or a fraudulent sale. But, with time, the purpose has shifted. Registration is about increasing government revenue, not securing ownership. It is also about aiding the police in solving crimes which have nothing to do with the ownership (transfer) of the car. In other words, it is Big Brother or the part of the bad Nazi movies where they instruct the person “show me your papers.”

It would make sense then that you would never hear Objectivists or Libertarians making these sorts of arguments. However, many Objectivists and Libertarians do use this reasoning to support their positions on gun control, immigration/travel, and drunk driving laws.

Gun Control: It is embarrassing when Objectivists support gun control laws. One of their standard arguments is that guns are instruments of violence and this is a gun’s only purpose so they can be regulated as part of the state’s proper purpose to protect against violence or because the government has a monopoly on the use of force. This regulation can include registration of guns, limitations on what weapons can be owned, and restrictions on who can own guns. Note that this argument assumes that gun owners must take an action when they have not been convicted or even charged with a crime. All of these are clearly regulations because they require preemptive actions by people who have not committed a crime and the purpose of these government rules is to prevent some potential harm. This is not consistent with Objectivism.

A more sophisticated argument is that the right to own a gun is part of your right to self-defense (not your right to property). Therefore, the government can limit what weapons you can own, and perhaps also require registration, because this does not interfere with your right to self-defense. The argument is that no one needs a Howitzer or nuclear bomb or a machine gun for self-protection – a much lesser weapon will do.

There are numerous problems with this line of reasoning. One is that a proper government cannot have rights that the people do not have themselves, except the right to delayed retaliatory self-defense. This means that if people cannot own Howitzers or nuclear bombs or machine guns for self-defense then the government cannot have that right either. Certainly, a proper government could and should have these weapons and they should only be used in self-defense. And, if the government has this right, then the people must also possess this right. Second, people do have the right to revolution if the government fails to protect their rights. This was established by John Locke and was the very basis of the American Revolution (it is also the justification for the actions of Ragnar Danneskjold in Atlas Shrugged).

“Whenever the legislators endeavor to take away and destroy the property of the people, or to reduce them to slavery under arbitrary power, they put themselves into a state of war with the people.” (John Locke)

“The goal of a revolution is to overthrow tyranny.” (Ayn Rand, “From a Symposium, Return of the Primitive: The Anti-Industrial Revolution, 173,”)

“The overthrow of a political system by force is justified only when it is directed against tyranny: it is an act of self-defense against those who rule by force. For example, the American Revolution.” (Ayn Rand, “From a Symposium, Return of the Primitive: The Anti-Industrial Revolution, 173,”)

Arguing that guns are only justified under self-defense is a sleight of hand. It is an attempt to impose regulations that are justified on the “worry about some potential harm” basis. This is inconsistent with Objectivism and common law (classical).

There is no justification why your right to property is limited by your right to self-defense. Your right to self-defense is a derivative of your right to yourself and your life, meaning your right to property – not the other way around.

Gun Control is not Consistent with Objectivism

Immigration/Travel Controls: In peace time, your right to travel is part of your right to your own life. If a person is not a criminal, stopping that person or demanding they show papers or asking them questions is the government initiating force against private people. When you ask for the justification for immigration controls most people suggest that immigrants will corrupt our cultural, political, or legal system. These are inherently collectivist arguments. The people who make this argument believe that an individual can be judged by where that individual grew up or that individual’s religion or genetic heritage. These are all collectivist arguments. They are antithetical to natural rights (individual rights) and Objectivism. Note the justification is based on some potential future harm which makes immigration/travel restrictions necessary; this makes them regulations.

Another nonsensical justification is that we have some sort of collective property right and therefore we can band together to stop people from crossing a border. There is no such thing as collective property rights and property rights cannot be used to significantly interfere with the right to travel. I have written on this extensively in my post Property Rights: The Foundation of Freedom. Ultimately, this is another rationalization to prevent some potential harm.

An absurd argument used by some so-called Objectivists to impose immigration/travel restrictions is the right of association. The right of association, like all rights is personal and you are not forced to associate with immigrants and the immigrants/travelers also have the right of association. In addition, the people who make this argument are using the right of association to limit everyone else’s right of association. I cannot associate with a foreigner, because you do not want to associate with a foreigner. It is just embarrassing when people make this argument.

Immigration/travel controls can be justified in times of war if the war is properly declared, if there is a military purpose, if these controls are narrowly tailored, and they are the most efficient way to achieve an objective related to the war. These criteria are almost never met except in the case of narrow corridors near the actual war zone. For instance, there would have been no justification for such rules in the Spanish American War. The Spanish could not have sneaked in a military force on the continental United States of sufficient size to have any effect on the war.  Sabotage by the Spanish hundreds of miles from the front lines would have had a minimal impact on the United States military. The whole war lasted less than four months. In the Revolutionary War it would have been (and was) impossible to impose a meaningful travel restriction because of the large porous territories involved. In addition, it would have been a huge waste of military resources. Similar points apply to the Civil War, the Korean War, the Vietnam War and certainly not in the “War on Drugs” or the “War on Terrorism.”

The other justification for immigration/travel restrictions is to prevent the spread of disease. Quarantines have a long history, even in common law countries. The idea is that a person who knowingly has a disease or knows they are likely to have a disease is essentially violating other peoples’ right to self-defense much like assault. Quarantines are very problematic. For instance, can you quarantine a person with a cold? If not, how do you decide when a disease is serious enough that a quarantine is justified?

In modern times in advanced nations, we do not impose quarantines internally. Unless a country imposes quarantines internally, then there is no justification for quarantines for immigration/travel. In addition, immigration/travel restrictions are very unlikely to have meaningful impact on the spread of diseases. Ultimately, this justification for immigration/travel restrictions is an attempt to prevent future harm, which makes them regulations.

Your natural rights do not include the right to safety. Life includes risk and that includes the risk of getting sick. Everyone gets sick. If you do not want to risk falling ill, then stay at home. There is no justification for immigration/travel restrictions based on the risk of spreading diseases.

In Peace Time, there is no Justification for Immigration/Travel Restrictions

Drunk Driving Laws: We have all been convinced that you are a Neanderthal if you do not think that there should be laws against drunk driving. Unfortunately, this is all based on a very clever public relations campaign by MADD (Mothers’ Against Drunk Driving). MADD has substituted the nonsense of “alcohol related” for “alcohol caused” accidents. MADD and the NHTSA (National Highway Transportation Safety Administration) have used this gross dishonesty to claim 16,000 people in the United States are killed in “alcohol related” accidents each year; when an honest definition is used, only about 500 innocent people in the United States are killed.[6] There were 35,000 traffic fatalities in the United States in 2015, up slightly from earlier years. This means about 1.4% of traffic fatalities in the United States are caused by alcohol “impaired” drivers.

Scientifically a 0.08 blood alcohol level (BAC) does not statistically increase that person’s chance of causing a car accident. Many things, including a lack of sleep, increase the statistical likelihood of causing an accident much more than a 0.08 BAC. We can therefore dispense with the moral outrage, which is used to avoid logic.

The purpose of drunk driving laws is to prevent some future harm, which means it is a regulation.

Drunk driving laws are not consistent with Objectivism and Natural Rights

Conclusion

A logical definition of a regulation is a government rule that requires people who have not committed a crime or as the end result of a civil action to take positive action to prevent potential future harm. All regulations are inconsistent with Objectivism, Natural Rights, and Common Law (classical). Regulations are always ‘justified’ by the goal of preventing some future harm and violate the common law principle that people are innocent until proven guilty.

 
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[1] KAROL ŚLEDZIK, PATENT TROLLS AND SCHUMPETER’S CREATIVE DESTRUCTION, file:///C:/Users/Dale/Downloads/Patent_Trolls_and_Schumpeters_creative_d.pdf accessed 5/27/17;

NEW BILL TARGETS PATENT TROLLS STUNTING ECONOMIC GROWTH, http://www.engine.is/news/issues/new-bill-targets-patent-trolls-stunting-economic-growth/2471 accessed 5/27/17.

[2] Damien Schiff, Sackett v. Environmental Protection Agency: Compliance Orders and the Right of Judicial Review, http://www.fed-soc.org/publications/detail/sackett-v-environmental-protection-agency-compliance-orders-and-the-right-of-judicial-review accessed June 17, 2017.

[3] Joseph Postell, http://www.heritage.org/political-process/report/administrative-state-constitutional-government#Part1, From Administrative State to Constitutional Government, accessed June 17, 2017.

[4] Mark Hendrickson, The EPA: The Worst Of Many Rogue Federal Agencies, https://www.forbes.com/sites/markhendrickson/2013/03/14/the-epa-the-worst-of-many-rogue-federal-agencies/#6adc67221adb, accessed June 25, 2017.

[5] Rational criminal laws, where you must have mens rea and have caused harm or at least made substantial plans to do so.

[6] MADD (Mothers Against Drunk Driving) has had one hell of a run, http://www.drunkard.com/08_02_fighting_madd/ , accessed June 25, 2017.

 

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