Gorsuch, Neil, and Janie Nitze, Over Ruled: The Human Toll of Too Much Law. Harper, 2024. 290 pages.
At a time when what were once the most trusted institutions of society—the courts, the mainstream media, academia and higher learning—are now reviled as politicized and corrupted, conservatives have taken refuge in the Constitution and the Rule of Law. With the August publication of Over Ruled: The Human Toll of Too Much Law, Supreme Court Justice Neil Gorsuch argues that constitutional government itself has been corrupted and the Rule of Law turned against the freedoms it was created to protect. In this eloquent, non-technical little book about the state of American law, Justice Gorsuch warns that an over reliance on government to surveil and coerce behavior leads inevitably to the abuse of the police power of the state.
The primary focus of Over Ruled is the growth of the federal administrative state and the bureaucracy that has grown up to support it. Early in my career, I came to know the inner workings of the federal bureaucracy firsthand. I worked my way up the civil service ladder into the ranks of middle management at the Washington headquarters of a federal law enforcement agency. I was surrounded by mostly honorable people who sometimes made mistakes. But the errors of bureaucrats are rarely acknowledged. The cost of administrative delays and do overs are borne by the regulated, never the regulators.
Justice Gorsuch traces the dramatic expansion of federal power thru key legislation from the Progressive Era. Woodrow Wilson was a believer in “scientific government” and deference to “experts”. Who better to do the regulating than the best and the brightest, the “specialists” in Washington who are protected from political influence by reliable salaries and civil service laws that make them virtually impossible to fire? By the time the New Deal rolled around, the infrastructure of the Administrative State was firmly in place. Little by little it has morphed into the Deep State of entrenched bureaucrats whose biases are hidden and whose incompetence is protected by career tenure.
The story of government over reach is told through the stories of others. And Justice Gorsuch has got some good ones–ordinary people whose lives have been wrecked by the abuses of government. Historically, federal regulations have been administrative in nature and enforced through civil penalties and court injunctions. But not anymore. The expansion of the administrative state has given federal bureaucrats vast new powers. There may be as many as 3000 federal regulations that carry criminal penalties. (1)
Take the case of a small commercial fisherman who was cited at sea for harvesting a few undersize red grouper. When he docked his boat a few days later, federal agents boarded to take more measurements. They discovered some minor discrepancies from the earlier measurements. They surmised the fisherman had dumped his catch and replaced it. Federal agents charged him with destroying evidence under the Sarbanes-Oxley Act, a piece of legislation that came out of the Enron scandal and was intended to prohibit the destruction of financial records. (2) A man of modest means, the fisherman was now facing the full power and resources of the federal government.
Confident of his innocence and the fairness of the American legal system, he refused a plea bargain. But when his case came to trial, he was out lawyered in court, found guilty and handed a thirty day prison sentence followed by three years of probation. As a felon he was no longer eligible for a commercial fishing license. His livelihood was destroyed.
His initial appeals were denied. It was years before his case reached the Supreme Court which found that fishing for red grouper was beyond the scope of Sarbanes-Oxley and exonerated him. (3) But a Supreme Court victory didn’t restore the home and business he lost as a result of overzealous prosecution.
Or take the case of legendary race car driver Bobby Unser, three time winner of the Indianapolis 500. Unser was also an outdoor enthusiast who enjoyed exploring the Colorado Rockies on his snowmobile. On one trip, he got caught in a snowstorm. While trying to find his way to safety his snowmobile got stuck in a ravine and he had to abandon it. After a night in the freezing cold, he was eventually rescued. Without realizing it, he had crossed into National Forest Service land where snowmobiles were prohibited. When he contacted the authorities for help locating the vehicle he had abandoned, federal agents cited him for violating the Wilderness Act which carried a penalty of up to six months in jail. There was some ambiguity about the location of the Forest Service boundary. But a federal magistrate found him guilty anyway and fined him $75. Mr. Unser refused to pay and appealed the verdict. After a long odyssey through the federal court system, the 10th Circuit eventually affirmed his conviction. But the victory came at an estimated cost to the government of one million dollars. All to collect a $75 fine. (4)
One major problem Justice Gorsuch highlights in the dramatic growth of our modern legal system is that it is now beyond the understanding of ordinary citizens. The US Code has grown to 54 volumes and 10,000 pages. The Federal Register, which purports to codify current federal regulations was not established until 1936. It now runs to 200 volumes. Justice Gorsuch states, “….the sheer volume and complexity of our laws swallow up ordinary people.” (5)
In the early years of our Republic, acts of Congress were only a few pages long. One of the most transformational pieces of legislation in the 20th century, the Civil Rights Act of 1964, ran to 18 pages. Anyone can read it. But The No Child Left Behind Act of 2001 ran to 600 pages. Obama Care legislation in 2021 clocked in at 1000 pages. And President Biden’s COVID legislation topped out at 5000 pages. It seems fair to ask, did any Congressman or Senator actually read these bills before they voted on them? Did the Presidents who signed them into law actually read them? Justice Gorsuch concludes “At the most basic level law in our country has simply exploded.” (6 )
Of course the federal government is not our only law making authority. States and local governments are also busy. No one—no judge or lawyer –can ever know the full extent of the legal regimen we live under. Justice Gorsuch repeats a common jest—we have criminalized so many things that the average American now commits three felonies a day. Usually without knowing it. (7) The United States is now a “world leader” when it comes to incarceration, with a rate eight times any western European peer. (8)
Justice Gorsuch argues that over reliance on laws has placed too much authority in the hands of government. The law, which is intended to reflect our collective values and protect us in a system of ordered liberty has become too much of a good thing. To bring the matter home, is there any lesson for us here in Yavapai County?
I recently saw a press release from a law enforcement agency about a bust in Prescott Valley.(9) Reportedly, the suspect was wanted for questioning in Pinal County in connection with a suspected hit and run.
Her vehicle was caught on recently installed surveillance cameras in Prescott Valley, known as Automated License Plate Readers. The cameras record the license plate of every passing car. I’m guessing that most residents of Prescott Valley are unaware that the cameras have been in place since January and that they have traded the privacy of their personal travel to the demands of public safety.
The Fourth Amendment of the Constitution prohibits the authorities from conducting a search or seizure without a warrant. But this protection applies to private places such as your home or other places where there is a reasonable expectation of privacy. When you drive your car on a public highway you’re in a public place. The license plate on your car, among other things, is to show that it is properly registered. It’s there to be seen. The authorities say their new camera system doesn’t photograph occupants or activities inside a vehicle so Fourth Amendment protections don’t apply.
But when the subject is police surveillance of motorists in Prescott Valley, I’m reminded of the speeding tickets once issued from surveillance by hidden cameras on Highway 69. That system wasn’t designed to photograph occupants of vehicles either. It was just tracking speed. As you can imagine, mistakes were made. Owners were cited whether they were driving or not. The program received a decidedly mixed reception from the public. It was eventually dropped when a handful of local police officers were caught fixing tickets for family members. (10)
Prescott Valley’s new program sounds more benign. The cameras don’t clock speed or punish traffic violations. Its just a surveillance system to track vehicles on the road. It’s good at catching people with warrants and helping to locate stolen cars. Sounds like a good thing, right?
But as a lawyer, I can’t help but wonder about the implications for personal privacy and civil liberties. Imagine a friend who has attended a political meeting but wants to keep it private. Something happens at the meeting—an argument in the parking lot where someone gets shoved. The police are investigating.
A few days later a couple of plainclothes officers show up at our friend’s front door. “Just a routine investigation, sir. You’re not a target. We just want to ask about that meeting you attended last Saturday. Did you see anything happen in the parking lot?” Our friend is surprised to find the police at his door. He doesn’t want to become part of an investigation. He doesn’t want to answer questions about his attendance at a political meeting. So he answers, “I really don’t know anything. I wasn’t at the meeting.”
The officer smiles. “Oh, is that right sir? Well then, maybe you can tell us who was driving your car that afternoon? We have it on surveillance in the area at the time of the meeting.” And then he adds, no longer smiling. “But before you answer that, I need to remind you that it’s a crime to make a false statement to a police officer.”
What seemed at first blush like a good program for catching bad guys turns out to have a dark side. In an effort to fight real crime, we end up empowering the police to surveil everyone. For now, the cameras are only in Prescott Valley. But it’s hard to get around the Quad City area without traveling through Prescott Valley. This surveillance program affects everyone. The freedom we took for granted to live our private lives and move about freely without being tracked by the police is gone. Who knew that something so fundamental to your privacy and freedom could be taken away by a municipal ordinance?
In Over Ruled: The Human Toll Of Too Much Law Justice Neil Gorsuch has given us a wonderful little primer on the importance of fighting for freedom in the face of the insatiable demands of the authorities.
ENDNOTES
(1) Gorsuch and Nitze, 21
(2) Gorsuch and Nitze, 10
(3) Gorsuch and Nitze, 29
(4) Gorsuch and Nitze, 105
(5) Gorsuch and Nitze, 3
(6) Gorsuch and Nitze, 16
(7) Gorsuch and Nitze, 106
(8) Gorsuch and Nitze, 110
(9) Prescott Valley Police Department, Facebook post, July 23, 2024
(10) “Time to rethink radar cameras, but decision has consequences”, Daily Courier, March 20, 2013; https://www.dcourier.com/opinion/time-to-rethink-radar-cameras-but-decision-has-consequences/article_7bafba47-15b3-50a8-aed0-a44053fa3b6f.html and “End of photo radar in Prescott Valley: Vans are gone, cameras are bagged”, Daily Courier, October 3, 2013; https://www.dcourier.com/news/end-of-photo-radar-in-prescott-valley-vans-are-gone-cameras-are-bagged/article_3933645c-e90d-5d8b-8edc-30dbf320f0cd.html
