How Many Laws Did You Break Today?: REVIEW: ‘Over Ruled: The Human Toll of Too Much Law’ by Neil Gorsuch and Janie Nitze (Ilya Shapiro, August 11, 2024, Free Beacon)
Over Ruled pithily describes true rule of law as requiring “laws that are publicly declared, knowable to ordinary people, and stable.” To flesh this out a bit, the rule of law is a principle of governance whereby all people and institutions—including the government—are accountable to laws, not personal authority. These laws have to be publicly passed by a representative body; enforced equally through robust legal processes by enforcement organs that themselves follow the law; and reviewed, interpreted, and applied by an independent judiciary.
In other words, the rule of law exists when people are secure in their persons and property; the state is itself bound by the law and doesn’t act arbitrarily; and everyone can rely on legal institutions and the content of the law to plan their personal and business affairs.
Three trends have threatened the rule of law in America: (1) the growth of government—the authors note that the Eisenhower Executive Office Building once housed the State, Navy, and War departments but now can’t even hold all the White House staff, and that three million civilians work for the federal government; (2) the growth of federal laws—such that lobbying the federal government has grown from $40 million to $4 billion in the last half-century; and (3) a bureaucratic explosion—such that in 2015, for example, Congress adopted 100 laws but federal agencies issued 3,242 final rules and 2,285 proposed rules. On the latter point, Gorsuch and Nitze describe a Pacific Legal Foundation report finding that “71 percent of the nearly 3,000 rules issued by the Department of Health and Human Services between 2001 and 2017 were issued by lower-level officials rather than Senate-confirmed agency leaders; at the Food and Drug Administration the figure was 98 percent.”
People’s lives have been turned upside down by a centralization and expansion of government that ultimately can’t keep track of what it’s doing across its range of regulatory machinery. Over Ruled presents detail upon detail of ordinary citizens ensnared in nonsensical regulatory webs that in practice are little different from capriciously applied secret laws, just without the late-night knock on the door leading to a basement torture chamber. Not because the regulators and their enforcement agents are sadistic or power-hungry—though public choice theory makes clear the incentives to increase authority and budgets—but because the governing apparatus has grown too unwieldy. The deep state doesn’t know what the deeper state is doing!
And that’s before we even get to criminal law. As civil libertarian lawyer Harvey Silverglate famously posited, the average American commits three felonies a day. Gorsuch and Nitze have a chapter on such overcriminalization.