THE REGULATORY BILL OF RIGHTS

It didn’t get a lot of media coverage, given the constant craziness these days.  But believe me, the new executive order from President Trump that contains these new guidelines is a very big deal indeed.  With this new requirement, the president has ordered that all agencies treat Americans fairly.

If it’s properly put into effect by federal agencies per the president’s order, this improved approach would lift a tremendous weight off American landowners, businesspeople, and consumers.

How could anyone possibly disagree with these new guidelines?  Why weren’t such rules always in place to protect citizens’ rights?

As you’ll see, the Regulatory Bill of Rights aims to ensure the basic due process rights of Americans must be respected by regulatory agencies and bureaucrats.

No more should property owners and businesspeople be considered guilty until proven innocent.  No more should government be able to concoct charges without sharing the evidence with the accused.  No more should bureaucrats be able to surprise, bully, and harass citizens who never intended to break the law to begin with.

These declarations were included in the president’s recent executive order urging federal agencies to avoid new regulations that could hinder economic recovery following the coronavirus pandemic.

Restoring respect for basic due process and fair treatment for Americans accused of regulatory violations is long overdue.

They’ve never heard about the abuses suffered by Mike and Chantell Sackett.  In 2007, the Sacketts began building a home in Priest Lake, Idaho.  Only to have the EPA step in to stop them, claiming their lot was a federally protected wetland.  When Mike and Chantell protested, bureaucrats refused to provide evidence and attempted to deny the Sacketts their day in court.

Years of federal foot-dragging ensued, culminating in a PLF-led case at the U.S. Supreme Court in 2012.  The court ruled unanimously that Mike and Chantell had a right to their day in court to challenge the EPA’s claims.  But despite this victory, the Sacketts still faced more than $150 million in fines!

Only after 12 years of litigation did the EPA finally back down.  Yet would you believe it’s still not clear if Mike and Chantell can build on their property?  We’re still in court to try and make that clear.

They’ve never heard about Navy veteran Joe Robertson from Montana.  After he dug a few ponds on his remote property to provide water in case of a fire, he allegedly ran afoul of the Clean Water Act.  Joe was convicted and forced to spend 18 months in federal prison and pay $130,000 in restitution!

The U.S. Supreme Court overturned Joe’s conviction last year, but sadly, Joe had passed away prior to the high court’s ruling.  All this over a couple of ponds!  What an unbelievable miscarriage of justice.

If the Regulatory Bill of Rights had been in force earlier, people like Mike and Chantell Sackett and Joe Robertson could have avoided so much pain and suffering.

By insisting that federal agencies respect due process, you and I will put a stop to bureaucratic “kangaroo courts” that make a mockery of justice!

The problem isn’t that bureaucrats occasionally cross lines in pursuit of clear villains and dastardly polluters.  Instead, they’ve stacked the process against ordinary people, even in mundane cases.

You’ll be glad to know our approach is paying off.  To name one encouraging example, we represented Quent and Linda Cordair of Napa County, California.  The Cordairs own a commercial art gallery where they sell pieces from local artists.

The shutdown hit them hard, as it did so many other small businessowners.  Even though the Cordairs were perfectly capable of following the social distancing rules mandated by government, state officials forced them to stay closed even as big-box retail stores remained open.

When California began its reopening process, their gallery was considered a museum rather than a retail establishment, and so was forced to wait even longer to reopen.  But Quent and Linda didn’t take that laying down.

They sent letters to California’s governor and their country leaders, describing the unfairness of the situation and urging them to treat the gallery like other retail stores.  The county didn’t respond.

But when Pacific Legal Foundation (PLF) attorneys got involved and sent the county notice of our impending lawsuit on behalf of Quent and Linda, that got their attention!  The county quickly folded and agreed to treat retail art galleries as retail stores and allow them to reopen.

Now the Cordairs are back in business, safely serving their artists and customers once again.  Their victory was a relief.  But how sad that their case had to go so far.

As Linda put it, “We should be able to pursue our passion, earn a living, and serve our customers without having to threaten legal action.”

The Regulatory Bill of Rights

From President Donald J. Trump’s Executive Order of May 20, 2020
Section 6: Fairness in Administrative Enforcement and Adjudication.

The heads of all agencies shall consider the principles of fairness in administrative enforcement and adjudication listed below, and revise their procedures and practices in light of them, consistent with applicable law and as they deem appropriate in the context of particular statutory and regulatory programs and the policy considerations identified in section 1 of this order.

  • The Government should bear the burden of proving an alleged violation of law; the subject of enforcement should not bear the burden of proving compliance.
  • Administrative enforcement should be prompt and fair.
  • Administrative adjudicators should be independent of enforcement staff.
  • Consistent with any executive branch confidentiality interests, the Government should provide favorable relevant evidence in possession of the agency to the subject of an administrative enforcement action.
  • All rules of evidence and procedure should be public, clear, and effective.
  • Penalties should be proportionate, transparent, and imposed in adherence to consistent standards and only as authorized by law.
  • Administrative enforcement should be free of improper Government coercion.
  • Liability should be imposed only for violations of statutes or duly issued regulations, after notice and an opportunity to respond.
  • Administrative enforcement should be free of unfair surprise.
  • Agencies must be accountable for their administrative enforcement decisions.

1 Comment

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One response to “THE REGULATORY BILL OF RIGHTS

  1. Gary Wechter

    Art… I wasn’t aware of this even though I try to stay on top of what’s going on in Washington. Another item on the plus side of the ledger for our President. Thank you for sharing it.

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