Jonathan Emord
As an attorney who represents businesses and interacts frequently with entrepreneurs, I hear repeatedly concerns that investigators for various federal and state agencies have become emboldened and are endeavoring to put them out of business. This widely expressed sentiment is not paranoia. It is a justified fear, and it is giving rise to a bunker mentality highly destructive to free enterprise. Many executives are holding onto their cash, hunkering down, and avoiding making moves to expand their businesses, hire more employees, or undertake new ventures because they greatly fear an unpredictable regulatory future—one where relationships with lenders and insurers are changing fundamentally and will keep changing in unforeseeable ways for years to come.
The greatest uncertainty they fear is the unleashed regulator, unleashed by the Obama Administration with instructions to seek and destroy. They believe the new army of regulators coming out of the Obama Administration regard industry as exploitative and evil. They are undoubtedly correct, at least to the extent that career civil servants who have harbored hatred for those they regulate but have been stopped from taking adverse action by political appointees of a conservative bend now have no such barriers in their way.
When law and law enforcement become unpredictable, entrepreneurs look for places to hide. Because they most often have assets not easily removed from a country, they usually try to stay off the radar screen, avoiding any move that will heighten their visibility by regulators. This is a characteristic of many third world countries, where regimes are unstable, where police can become armed bands of thugs, and where judicial decisions and local elections can be bought.
In the United States, we have enjoyed a very long period of stable governance. Transitions of power from one party to another have occurred without violent revolution. Police, while on occasion corrupt, are by and large law abiding. The military remains under civilian control. We, of course, had the great benefit of George Washington, who established limits to power through his words and deeds as President and Commander in Chief.
The rule of law, once held sacrosanct here, is now violated with impunity by federal regulatory agencies whose leaders think their missions more important than any laws that forbid their actions. They reinterpret their authority, acting directly against statutory and constitutional limits on their power quite frequently. They conduct under cover surveillance operations against citizens of this country, falsely representing their identities in an effort to induce violations of agency rules as a bases for prosecuting the offenders. Civil and criminal penalties can attend these violations, and many of the rules in question are either so obscure or counterintuitive as to seem incredible to those who violate them.
Rangers in the West whose cattle have traversed rights of way over federal lands for in excess of a century, have suddenly come to realize that they are being held guilty for the first time of trespass on those federal lands and ordered to pay huge fines. A trespass is deemed to occur every time a calf, a cow, or a bull takes a step onto federal property off of the right of way. Not good about following street signs, cattle on the move rarely stay in their lanes. BLM and Park Service agents perch with binoculars from high points and aircraft, photographing every trespass, monitoring the brands on the cattle, and then circling back to impose fines on unsuspecting ranchers.
Folks who own cherry orchards come to find out from professors at the university that certain kinds of tart cherries contain high levels of antioxidants and other biochemicals that are effective in reducing the symptoms of arthritis. They give that information, including the studies, to customers who buy cherry juice. Agents of the Food and Drug Administration visit them unannounced, inspect their farms, demand their literature, and inform them that they must stop telling people of the effects of cherries and cherry juice on arthritis or their cherries will be deemed unapproved new drugs. The farmers can then be charged with selling unapproved drugs, sentenced to jail terms, and lose their farms.
Dairy farmers who harvest fresh milk from healthy cows and share it with neighbors or make it available to health food stores come to realize that several federal and state agencies, doing the bidding for large milk processors, will prosecute them because their milk is not pasteurized, without regard to the fact that the milk is healthy and contaminant free. Parents who home school their children and elect not to obtain vaccinations for them, choosing to avoid any risk of injury from vaccines while simultaneously not exposing their children to public school environments, are surprised to learn that state health authorities insist that they vaccinate their children against their will, despite the fact that they pose no material risk of disease transmission to the general population.
Parents of a child dying of cancer are informed by attending oncologists that they can do nothing to save the child. The parents take their child to a clinic that offers an experimental drug for the cancer in question. The child takes the drug, begins to experience a reduction in tumors throughout his body. The parents are then informed that the FDA has determined that the child is ineligible to receive the experimental drug and must return to the failed regimen previously rejected by the parents and their attending oncologists.
A single mother who lives in the city and has two school age children decides after a second break-in to her home that she must arm herself. Delighted that she has maimed an intruder and stopped the break-ins, her delight turns to a feeling of helplessness when police arrest her and charge her with use of excessive force. She discovers that her successful use of her weapon to defend her home and children has resulted in a criminal prosecution for excessive force and a civil prosecution by the one she maimed for negligence, both entertained by the courts rather than dismissed. She ends up incurring huge legal bills, continues to suffer break-ins, and is sentenced to community service that forces her to leave her school age children alone at home for several hours each day.
A border patrol agent in pursuit of illegals who have crossed the border without authorization discharges his weapon and kills one in the course of that alien resisting arrest. The agent is prosecuted, convicted, fired, and given a life sentence.
These are all true examples of a bloated, all-consuming regulatory state that replaces a system of ordered justice with one of bureaucratic efficiency and that replaces respect for the rights of man and the rule of law with expansion of agency control over every aspect of enterprise.
Economic and civil liberties cannot prosper, let alone survive, in an environment of unstable law and law enforcement. Unless we reestablish constitutional government in the United States, replete with governors accountable to the people and possessed of limited powers and meaningful protection for economic and civil liberties, we are not that far from witnessing our nation devolve into the anarchic decay, rife corruption, and official lawlessness that is so common in third world countries.
Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable seven times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, and Global Censorship of Health Information. For more info visit Emord.com.
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