The Error of Big Government

...EPA estimates that complying with RCRA costs businesses and governments an estimated $3o billion a year...

...Beginning in 1970, Congress enacted legislation to permit the seizure of property of Mafia organizations and major drug smugglers...

...So-called "drug courier profiles" have allowed police to stop and search practically anyone they please—particularly anyone who displeases them...

...More than 1,000 species are now on the endangered list, and the U.S...

...In 1984, the Supreme Court ruled that government agents do not need a search warrant to go roaming on private property in search of evidence to arrest the owner...

...In the same speech, Clinton proposed over a dozen new federal programs and mandates...

...For others it is apparently enough that conservatives remain in the ascendant politically...

...In 1972, Congress passed the Clean Water Act to restrict the pollution of navigable waters...

...Rather than focusing on grandiose budget deals full of unenforceable promises about spending and taxing in the next century, Republicans must zero in on existing government abuses...

...persons traveling alone, and persons traveling with a companion...

...During most of the 1970's, the Interior Department was restrained in its enforcement of the act, with the only major controversy involving the snail darter around a large dam in Tennessee...

...The Washington Times reports that Boehlert even participated in an environmentalist demonstration in November 1995 on the steps of the Capitol, chanting, "Stop the rollback...

...The average family with two earners will pay more in taxes in 1996 than their total nominal earnings in 1977...

...State and local governments have also jumped on the bandwagon, increasing their confiscations of private property by a hundredfold in the last fifteen years, according to forfeiture expert Steven Kessler...

...Once the government has made such a declaration, it can—and usually does—seize dictatorial control over the use of property in any area in which the threatened species resides...

...Yet many conservatives seem to believe that, since Clinton proclaimed that they have won, what else is there to fight for...

...the only evidence linking the clothing rental company to the site was the fact that it had paid someone $14 in 1972 to haul trash there...

...Kessler proposed this past August to reclassify cigarettes as "drug-delivery devices" —thereby giving federal bureaucrats veto power over the personal habits of tens of millions of Americans...

...RCRA prohibits the disposal of some chemicals in double-lined landfills, yet EPA allows the same chemicals to be applied directly to the land as fertilizers...

...Boehlert ranks almost dead last of all Republican congressmen in his support of free-market policies, according to the Competitive Enterprise Index...

...Several churches and local schools were identified as lawsuit targets to finance the cleanup of a Superfund site in Gray, Maine...

...This amounted to a hidden tax of almost $7,000 a year on the typical family...

...It would be difficult to craft a court decision that more clearly repudiated the sanctity of private property...

...The increase in federal power is now practically on automatic pilot, and the laws are so broad and expansive that ambitious bureaucrats simply squeeze a little more power out of them each year...

...And the court made it clear that it was not referring only to open fields, adding: "A thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment...

...thus, anyone who sent anything to a dump that later became a Superfund site can be held personally liable for the entire cleanup cost of that dump...

...Even internal government documents recognize this problem: a September 1992 Justice Department newsletter noted, "Like children in a candy shop, the law enforcement community chose all manner and method of seizing and forfeiting property, gorging ourselves in an effort which soon came to resemble one designed to raise revenues...

...There is no index to measure it, but that power cuts into the lives of the American citizenry more than any tax or spending increase...

...In other words, companies bear the burden of proving themselves innocent, rather than the government proving them guilty...

...Republican congressional leaders must begin paying attention both to principles and details...

...According to the EEOC, 49 million Americans are disabled—and thus entitled to receive preferential legal status and a federal club to enforce their demands...

...In states such as Louisiana, the feds have effectively sought to claim jurisdiction over half of all the private land...

...The other new gun law is the Lautenberg Act, which prohibits anyone from possessing a firearm who has a misdemeanor conviction for domestic assault of a spouse, child, or roommate...

...In the same period, the typical family's tax burden has increased from $11,620 to $22,7o7, according to the Tax Foundation...

...Often, forfeitures are based on the word of confidential informants (often ex-convicts), who are given up to 25 percent of the value of any property the government seizes based on their accusations...

...The act has led many states and localities to lower their hiring requirements for police officers...

...The conservative victories of recent years have, in some ways, been even more costly than conservative defeats —for they have created the illusion that the government Leviathan has been leashed...

...That is what the president is proposing...

...The Georgia state police instructed troopers to be wary of "cars carrying a box of tissues, which signals cocaine use, and cars carrying empty McDonald's cartons or pillows and blankets in the back seat, which may signal drug runners in a hurry...

...Because the Lautenberg Act is retroactive, it has probably created at least a million new felons nationwide...

...The larger government becomes, the more likely it is that political values will squeeze out private ones...

...After this Supreme Court decision, any "field" that is not surrounded by a 2o-foot-high concrete fence can be considered to be "open" for inspection by government agents...

...The FDA has an extremely timid, risk-averse approach to approving new drugs...

...The more power that politicians seize to supposedly protect people, the more power that government agents have to accost, arrest, plunder, and harass innocent citizens...

...In 1975 a federal judge ruled that this provision also applied to wetlands adjacent to navigable waters...

...But even George McGovern labeled himself a "new conservative" for his 1974 Senate re-election campaign...

...If one excludes drug-related homicides, the murder rate in the United States is actually lower than it was early in this century...

...If Republican congressmen lack the will to look into what the bureaucrats are up to, public cynicism about their claims to be cutting "big government" will only increase...

...The key provision of the law declares: "It shall be unlawful for any individual knowingly to possess a firearm that has moved in interstate commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone...

...The more that government tries to protect everyone from everything, the more cause that Americans have to fear the government...

...Under outgoing commissioner David Kessler, the FDA has become far more restrictive in permitting new drugs or medical devices on the market...

...New laws mean new punishments: the number of federal administrative penalties has also soared in recent years...

...The law was intended to address dire threats from abandoned hazardous-waste sites...

...The agency notified Formal Ware Rental Services of Tulsa, Oklahoma, that it would be held responsible for the cleanup of a local Superfund site...

...The burden of government regulations rose to $667 billion in 1996, according to the Small Business Administration...

...Reagan captured the presidency in 1980 having asked, "Are you better off than you were four years ago...

...The IRS imposes almost three times as many penalties each year as it did in the late 197o's— despite repeated reports from the General Accounting Office that show a stratospheric rate of errors and unjustified exactions in those penalties...

...Search and Destroy The federal government has secured even more power in cases that do not involve environmental concerns...

...Wetlands have been another source of mushrooming government...

...The law was a minor nuisance until 1984, when Congress revised it to make it far more prohibitive and punitive towards corporations...

...Far more federal employees are now permitted to carry firearms than in 1980...

...Under the new definition, land that was dry 35o days a year could be classified as a wetland...

...Yet Superfund has been expanded for almost twenty years—and has cost the private sector and government more than $70 billion...

...Henry Hyde, chairman of the House Judiciary Committee, did co-sponsor a bill in the last Congress to rein in some forfeiture abuses, but hearings on the legislation were not held until last July—killing any chance Congress would act before the election...

...A White House press release on August z8 bragged that the administration's bill "will ensure that the assets of environment criminals can be secured even before conviction...

...in other words, "a bureaucratic redtape nightmare...

...Republicans captured the Congress in 1994 in part because of widespread anger by property owners and business owners about rampages by environmental agents...

...Free the Planet...

...American citizens now have much less freedom to pass through airports, along sidewalks, or on interstate highways unmolested by government agents than they did in 1980...

...When conservative and land-use groups criticized Boehlert, Gingrich last September praised his efforts as key to making the io4th Congress "the most successful in protecting the environment in recent history...

...Along with taxes regulation is also skyrocketing...

...And if the citizen wants to sue to get the money back, legal costs routinely amount to several thousand dollars...

...Clearly federal drug policy is responsible for a degree of social regression for which there does not appear to be any equivalent in our history...

...These charges, as Washington Times editorial writer Ken Smith later demonstrated, were part of a smear campaign orchestrated by environmental groups against victims of federal violations...

...But what does that mean if the federal government's power and claims continue to advance by leaps and bounds year after year...

...The TV room was too smoky...

...Ironically, the new law will disarm many women it claims to be protecting...

...Seize the Moment Seizures Few laws in recent memory have sown as much uncertainty and legal chaos as the Americans with Disabilities Act (see "The Lame Game," TAS, July 1995...

...Beginning in the mid- to late-1980's, however, lawsuits by environmental organizations and decisions by federal bureaucrats vastly broadened the sweep of the law...

...Under RCRA, EPA presumes that every citizen near a site would suffer maximum exposure to every toxic—and would drink half a gallon of wastewater from hazardous sites every day for seventy years...

...Rehnquist based his decision heavily on an 1827 case involving the seizure of a Spanish pirate ship that had attacked U.S...

...Unfortunately, since Ronald Reagan took office, hundreds of such precedents have been established that greatly increase the sway of government bureaucrats over the lives, property, and health of the American people...

...In federal court cases, drug courier profiles have justified government agents accosting plane passengers who had non-stop flights, and those who changed planes...

...New Mexico police invented a drug courier profile to justify stopping drivers who showed "scrupulous obedience to traffic laws...

...A majority of the Supreme Court decreed that "open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from government interference or surveillance...

...According to Utah gun activist Sarah Thompson, "Since both partners are often charged in domestic violence disputes, the new law effectively prevents battered women from obtaining the safest and most reliable form of self-defense: a gun...

...The Recorder, a California legal newspaper, noted in October: "Attorneys cited for transgressions ranging from neglect of their cases to stealing from clients have asserted that their actions are mitigated by mental impairment or substance abuse, and thus are entitled to leniency under the ADA...

...What's Yours Is Mine Few areas more visibly capture the danger of greater government power than the proliferation of asset forfeiture laws...

...Numerous drug courier profiles have been devised for airplane passengers...

...Despite widespread outrage about the FDA in the early 1990's, however, the agency continues to stretch its power...

...Regrettably Rehnquist did not explain what makes piracy in the 182o's and prostitution in the 1990's legally equivalent...

...The court was considering a Michigan case in which police seized a car co-owned by Tina Bennis after they caught her husband on the front seat with a prostitute...

...Constitution subcommittee chairman Charles Canady (R-Fla...

...As a result of the ADA, a federal judge recently ruled that the Iowa State Penitentiary violated the rights of an asthmatic mass-murderer by refusing to provide him with personal cable TV in his cell...

...The ADA has been a boon to lawyers in more ways than one...

...however, canceled her appearance after a journalist called him with unsubstantiated charges against the Hecks...

...The Army Corps of Engineers received the power to approve or deny permits to discharge dirt or other materials into such waters, and Congress gave the EPA veto power over those permits...

...Superfund Superfans The history of Superfund also epitomizes modern government out of control...

...In some cases, federal agents confiscate the traveler's cash if they are not satisfied with the reason he gives for carrying more than a few hundred dollars in his pockets...

...EPA chief Carol Browner declared last August, "You know, right now, if you're running drugs in this country and you are caught, your assets can be taken —there is something called `asset forfeiture.' Well, we think the same should be true for the polluter...

...In a case involving New York's Ludlow Sanitary Landfill, a court ruled that a butcher shop owner was liable because the glue on the boxes he threw in his dumpster (and which were later taken to the landfill) contained hazardous materials...

...Numbers Tell the Story Consider some of the hard numbers: Since 1980, the federal budget has increased from $576 billion to more than $1.6 trillion— a rate of increase far larger than the inflation rate...

...EPA relies on joint and several liability to enforce its Superfund dictates...

...In other areas of law, the power of federal prosecutors to freeze assets routinely destroys an individual's or corporation's ability to defend himself against criminal charges—making it easier to get a conviction—and thereby getting a judge's permission to permanently seize the corporation's assets...

...Republican efforts at wetlands reform collapsed in the last Congress from loss of nerve...

...people who appeared nervous, and others who appeared too calm...

...The EPA selected New York's Rosen Brothers Scrap Yard largely based on the testimony of employees about events that had hap38 February 1997 • The American Spectator pened two decades before...

...If someone poured a glass of chlorinated tap water onto the ground at a RCRA cleanup site, he could be fined for polluting the environment, according to former EPA General Counsel Frank Blake...

...The Clinton administration wants to stretch this power even further...

...Since 1980, hundreds of new criminal offenses have been added to the federal statute books...

...After George Bush signaled his affection for wetlands in the 1988 presidential campaign, the EPA and Army Corps issued a new manual for identifying wetlands and proceeded to seize control over the property of hundreds of thousands of American landowners...

...As Senator Moynihan noted, "It is essentialthat we understand that by choosing [drug] prohibition we are choosing to have an intense crime problem concentrated among minorities...

...Another example of how recent environmental policy is allowing government bureaucrats to criminalize almost everything is the Resource Conservation and Recovery Act...

...Or might reside: in New Jersey, 77year-old Grace Heck was prohibited from building on land she had bought for her retirement because the federal Fish and Wildlife Service ruled that there was an endangered species of plant "within five miles of the proposed project site...

...ships...

...Interior Department requires almost no evidence to proclaim a species endangered or threatened...

...Yet, while Bob Dole was waving his little card with the Tenth Amendment on the hustings, Republicans in Congress joined a liberal stampede to reimpose, with minor word changes, the Gun-Free Schools Act...

...However, Speaker Gingrich made Rep...

...Oft The American Spectator ?February r997 79...

...Some conservatives might say they are only concerned with the "big picture," or about moral values and social issues...

...It remains to be seen how much gumption conservatives and Republicans show in opposing this latest power grab...

...Congress re-enacted the Gun-Free Schools Act, a law initially passed in 1990 that was struck down by the Supreme Court, in a landmark 1995 decision, as a violation of the Tenth Amendment...

...But, as Montesquieu wrote, "As [government] power grows, so security diminishes...

...RCRA requires that companies clean up their factory grounds to "background levels"—i.e., levels at which chemicals occur naturally in the surrounding environment...

...JAMES BOVARD is this year's Warren Brookes Fellow at the Competitive Enterprise Institute...

...But background levels usually have no relation to safeguarding human health...

...Enacted in 1976, RCRA regulates the treatment, storage, transport and disposal of hazardous waste...

...Guns and Poses The Republican Party's tacit support for increased federal power is symbolized by the rubber stamp Congress gave to two new major gun control laws late last September—even though Newt Gingrich had promised no such laws would come to the floor during his speakership...

...Yet, despite these outrages, Republicans have not summoned the will or the wisdom to reform the program...

...National Cancer Institute offi40 Febr uary 1997 The American Spectator cials have accused the FDA of being "mired in a 1960's philosophy of drug development, viewing all new agents as...poisons...

...The result, says former Bush environmental analyst Jonathan Tolman, will be a quintupling of the Corps' regulatory workload...

...If you're polluting the public's air and water, then the benefits you derive, the assets you have can be taken...

...One such case involved the above- mentioned Grace Heck, who was all set to testify at a. House hearing in February 1995 on wetlands abuses...

...As he explains, "Don't ever in your passion for the environment let yourself become partisan" — advice that the Sierra Club, for one, doesn't heed, donating ten times as The American Spectator • February 1997 much to Democrats as to Republicans...

...the number of federal prosecutors has nearly done so...

...others insist that the last person off is the likely drug dealer...

...Once a profile is created, police claim "reasonable suspicion" to stop and demand information from people, and to pressure or force a citizen to submit to a search...

...The EPA's "glancing geese doctrine," for example, permits the agency to claim jurisdiction over any moist land patch of more than a few square feet that migrating birds might fly over...

...similarly, anyone who drives within i,000 feet of any (Continued on page 79) 41 The Error of Big Government (Continued from page 44 of America's ioo,000 schools could get five years merely for having a pistol in his glove compartment...

...co-chair of an environmental task force he setup...

...Many localities now have mandatory arrest policies for police answering domestic disturbance calls, and arrest rates for women are skyrocketing...

...The YMCA in Boston is being sued for $20 million damages by a deaf lifeguard who was dismissed after the YMCA, seeking to comply with the ADA, established clearer guidelines on who could be a lifeguard...

...Richard Stroup, former chief economist of the Interior Department, declared: "The Fish and Wildlife Service faces no budget constraint on the number of acres it can control in the name of endangered species, so it always wants more...

...It is understandable that, considering the rise in crime in recent decades, conservatives would instinctively favor granting more power to law enforcement...

...As a Wall Street Journal editorial noted, "Enforcement of the act is being effectively steered by the BANANA: Build Absolutely Nothing Anywhere Near Anything...

...They also fingered a Boy Scout troop as a "potentially responsible party" to finance the cleanup of a Superfund designated scrap yard in Minneapolis...

...Former Justice Department attorney William Laffer observed, "Any time the Army Corps or EPA think a parcel of land is beneficial to wildlife, they arbitrarily apply the wetlands definition to prohibit the owner from using the land...

...Among the tell-tale characteristics in a widely-used DEA courier profile are "the almost exclusive use of public transportation, particularly taxicabs, in The American Spectator • February 1997 departing from the airport" and "immediately making a telephone call after deplaning...

...Since 1980, the federal government has added more than a million pages of new regulations, proposals, and rulings to the Federal Register...

...Today the question to be asked is, "Are you freer than you were when Ronald Reagan took office...

...Stanford University professor Dale Geringer has observed, "In terms of lives, it's quite possible that the FDA bureaucracy could be killing on the order of three to four times as many people as it saves...

...And, with changes to the Posse Comitatus laws in the early 1980's, U.S...

...One study estimated that 15o,000 heart attack victims may have lost their lives as a result of the FDA's delays in approving the emergency blood-clotting drug TPA...

...While some prosecutors sought to portray the issue of the sanctity of private land as an issue of concern only to drug dealers, the American Farm Bureau was one of the fiercest opponents of the Reagan administration on this issue...

...Superfund was passed by a lame duck Congress called by Jimmy Carter after he had gotten trounced by Reagan in November 1980...

...Though Superfund has long been known as "robbery with an environmental badge," the political establishment has done little or nothing to correct its outrages...

...The fact that government agents could enter a person's property thereby somehow proved that they had a right to enter that property, and the fact that some private citizens disobey no-trespassing signs proved that government agents had no obligation to obey them...

...The court concluded there was no evidence that guns per se were involved in interstate commerce, and that Congress had no right to assert federal control over any gun that happened to be within a fifth of a mile of a local school...

...still others assert that people who try to blend into the middle are the ones to suspect...

...While there is concern about the disabled, other Americans are literally dying because of the failure to curb the rampages of the Food and Drug Administration...

...The Fairness to Land Owners Committee estimated that up to 100 million acres of land were reclassified as "wetlands," with roughly 7o percent of that land privately owned—just about equivalent to the states of Ohio, Indiana, and Illinois...

...Boehlert attends Sierra Club fundraisers...

...The number of federal lawsuits has exploded, and according to its own figures the Justice Department files charges against roughly 200,000 citizens and businesses every year...

...Reagan administration Solicitor General Rex Lee persuaded the court that government agents have an unlimited right to trespass on private land in order to seek evidence of law-breaking...

...Though corporate officials face fines of up to $50,000 a day and imprisonment for up to five years for each RCRA violation, EPA does a pathetic job of informing them of how to comply with the agency's interpretation du jour...

...Why have so many of them shied from holding knockdown hearings about the abusive role of federal agencies...

...The landmark case involved a search by Kentucky State police who ignored a no-trespassing sign and a locked gate, climbed over a fence, and hiked a mile onto a farmer's land to find some marijuana plants...

...In criminal cases, the government must prove a person guilty beyond a reasonable doubt...

...Despite such absurdities, congressional Republicans have not held a single hearing on ADA abuses nor has anyone suggested fundamental reform of the law...

...As Jefferson observed, "One precedent in favor of power is stronger than an hundred against it...

...Federal, state, and local police have invented new methods in recent years to exempt themselves from the Fourth Amendment, a citizen's constitutional protection against unreasonable searches and seizures...

...Sherwood Boehlert (R-N.Y...

...Federal regulators have an array of technicalities at their disposal to ensnare more private land...

...The administration submitted a bill in September to give the federal government the power to freeze (before a trial) the assets of corporations accused of violating environmental laws...

...More than 25 million acres have come under temporary or quasi-permanent control of the government as a result of the ESA—the equivalent of Massachusetts, Vermont, New Hampshire, and Connecticut combined...

...Drug courier profiles in many states include drivers who exceed the speed limit, even though a Federal Highway Administration survey found that over half of drivers on surveyed roads exceeded posted speed limits...

...To enforce those laws, the number of employees in the Justice Department has more than tripled...

...Unfortunately, conservatives have often been unrealistic on the crime problem—hypnotized by the notion that if the government simply builds enough prisons and ruins enough lives, everybody will be safe...

...Thus, anyone who lives within or drives within i,000 feet of a school could face arrest and five years in prison merely for transporting his hunting rifle to his car parked on a street in front of his house...

...Considering that police in recent years are using far more checkpoints to stop and search cars, this law could entrap many Americans who have no intention of shooting children during a school recess...

...Browner's proposal illustrates how a nasty legal trend can develop: first the government expands its power by pummeling a bunch of drug users or low-brow types, and then—next thing you know—the government has the audacity to use the same powers against a respected corporation...

...If—as widely rumored?Hillary Clinton did throw a lamp at her husband in 1993, that was an act of domestic violence that would be all the government would need to forever prohibit her from owning a gun...

...By opening up a whole new tobacco front, Kessler distracted attention from the continuing fatal delays by his agency in approving new lifesaving drugs and medical devices...

...The vast majority of people whose property is seized by federal agents are never formally charged with a crime...

...But government spending has continued to increase since 1980, and government power has increased even faster than that...

...The issue, ultimately, is not whether Republicans hold on to Congress, but whether federal power can ever be rolled back...

...While the Clinton administration is ostensibly campaigning to get weapons out of the hands of private citizens, the federal government has armed itself to a far greater extent than most Amer36 February 1997 • The American Spectator icans realize...

...Since definitions of domestic assault vary from state to state, the new law is more expansive than people might realize...

...Since 1979, federal seizures of property under forfeiture laws have increased by 2500 percent, totaling over $5 billion snatched from the hands of accused private citizens and businesses...

...39 Since then, federal agents have gotten license to seize private property under over a hundred different federal statutes, including gambling, wildlife violations, structuring withdrawals from one's bank account, having too much cash in one's wallet or luggage, etc...

...Kessler's action makes a mockery of the underlying federal statute defining medical devices —yet his chutzpah charmed the media and made him into an icon of benevolent interventionism...

...military forces and National Guard units have become involved in assisting or carrying out routine law enforcement efforts for the first time since Reconstruction...

...The Court's decision essentially nullified hundreds of years of common law precedents limiting the power of government agents, apparently forgetting why the Founding Fathers added the Fourth Amendment to the Bill of Rights: government officials cannot be trusted with arbitrary power over the lives and property of private citizens...

...The combined burden of government spending and government regulation now accounts for more than half of the gross domestic product each year...

...In asset forfeiture, the only thing federal agents need is a hearsay accusation, mere gossip or rumor...

...Thanks to such laws, thousands of American citizens are being stripped of their property based solely on rumors and unsubstantiated assertions made by government confidential informants...

...The Supreme Court last March made these laws even worse...

...When the Endangered Species Act (ESA) was enacted in 1973, the idea was that the act would ameliorate "high-profile" cases like that of the bald eagles...

...In the meantime, the Clinton administration announced in December that it was revising Army Corps regulations to require new permits to build on small tracts of wetland...

...Some reveal that the first person off the plane is a likely drug suspect...

...Chief Justice Rehnquist ordained that police could seize the property of innocent owners in spite of clear evidence that they had never approved of any misuse of their property...

...After a smattering of reform efforts, though, congressional Republicans retreated from this issue...

...Endangered Specious Acts Much of the starkest growth in government power since 1980 has occurred in the name of environmental protection...

...This decision has been cited in more than 32o subsequent federal and state court decisions...

...Some conservatives may think they've won a great victory because Clinton sometimes uses conservative rhetoric...

...However, one must recognize how much of modern crime is the result of bad laws...