Clark Neily
In his new book examining the “explosion” of freedom-restricting laws over the past few decades, Over Ruled: The Human Toll of Too Much Law, Justice Neil Gorsuch advances a thesis that will resonate with many: America is suffering from an excess of legal rules and regulations that increasingly constrain individual liberty while defying common sense.
Through vivid examples and careful analysis, Gorsuch documents how the sheer volume, complexity, and severity of modern American law have created a system where, paradoxically, there may be too much law for anyone to follow but too little justice for those caught in its web.
Consider the federal government’s bizarre regulatory crusade against the Ernest Hemingway Home and Museum in Key West, Florida. The Department of Agriculture deemed the museum’s resident cats—descendants of Hemingway’s beloved felines—to be subject to federal animal exhibition standards, leading to prolonged litigation over proper cat-care protocols that are not obviously within the purview of a federal government whose powers were meant to be “few and defined.”
Or take the 1997 prosecution of racing legend Bobby Unser, who faced federal charges for accidentally snowmobiling onto protected land while desperately seeking shelter from a life-threatening blizzard. That Unser was ultimately convicted and fined (albeit only $75) after a trial without a jury speaks volumes about how technical violations can trump common sense even in extreme circumstances.
Adding insult to constitutional injury, Unser was denied even the basic right to a jury trial due to the judicially invented “petty offense doctrine,” which provides that crimes punishable by less than six months’ imprisonment do not trigger the jury trial right—this despite the explicit command in Article III of the Constitution that “the trial of all crimes shall be by jury” and the Sixth Amendment’s guarantee of the right to a jury trial “in all criminal prosecutions.”
Notably, any suggestion that federal prosecutors have grown more judicious in their case-selection practices is belied by the ongoing prosecution of charter-boat operators John Moore and Tanner Mansell for interfering with a federally authorized, long-line shark-fishing operation near Jupiter, Florida, which they plausibly—though mistakenly—believed to be the work of poachers. Moore’s and Mansell’s felony theft convictions were reluctantly affirmed by the Eleventh Circuit, and they will be seeking Supreme Court review with amicus support from Cato and others.
These and numerous other examples illustrate Gorsuch’s broader argument about the corrosive effects of statutory and regulatory proliferation. When experts estimate that at least 70 percent of American adults have unknowingly committed imprisonable offenses, we confront the troubling reality described by law professor William Stuntz who, as quoted by Gorsuch, observed that “too much law amounts to no law at all,” because “when the law makes everyone an offender, the relevant offenses have no meaning independent of law enforcers’ will. The formal rule of law yields to the functional rule of official discretion.” A more succinct—and ominous—summary of the current regulatory landscape is hard to imagine.
Gorsuch’s diagnosis of these symptoms is compelling, and his concern for individual liberty—as expressed in his book and his judicial rulings—is inspiring. But the analysis presented in Over Ruled contains a rather glaring omission that will have many libertarian constitutional litigators (and perhaps others as well) scratching their heads and/or grinding their teeth, and that is the role of the federal judiciary in facilitating the very proliferation of law Gorsuch decries.
The Constitution’s framers anticipated that members of the legislative and executive branches would seek to expand their powers beyond constitutional limits. Accordingly, they created an independent judiciary to check this tendency and protect individual rights. Yet modern courts have largely abdicated that responsibility through a series of doctrinal developments that systematically favor government power over individual liberty and tilt the litigation playing field sharply in favor of power-wielding government actors. These include:
Judicially invented immunity doctrines and excessive use of “avoidance doctrines” such as standing, ripeness, mootness, and abstention to prevent otherwise viable challenges to government power from being heard on the merits;
Application of rubber-stamp “rational basis review” as the default standard in constitutional cases;
Embrace of functionally limitless theories of enumerated federal power, such as Wickard v. Filburn’s “aggregation doctrine”; and
Acquiescence to the practical elimination of criminal jury trials through mass plea bargaining, which vastly reduces the cost of pursuing even marginal charges and enables prosecutors to obtain convictions for pennies on the constitutional dollar compared to the more onerous procedure described and prescribed by the Bill of Rights, which devotes more than half its words to criminal procedure and jury trials.
Besides allowing the government to exercise forbidden powers and trample individual rights in particular cases, this retreat from meaningful judicial review creates a regulatory moral hazard. When lobbyists, legislators, and administrators know their actions are unlikely to face serious constitutional scrutiny, they have strong incentives to pursue regulations (often at the behest of powerful interest groups seeking to sandbag potential competitors) that they might otherwise have eschewed based on rational cost-benefit analysis regarding the prospects of having their regulatory handiwork undone by a subsequent reviewing court. The judiciary’s excessive deference thus actively encourages the proliferation of laws and regulations that might not survive more rigorous review.
Another point Over Ruled helpfully has addressed in grappling with the root causes of excessive regulation is the possibility that excessive judicial deference to dubious laws may flow in part from the federal judiciary’s institutional composition. A 2018 study by my Cato colleagues and me documents that approximately 44 percent of federal judges previously served as government advocates in court, while only about 6 percent spent significant time opposing government power as public defenders, public interest lawyers, or similar advocates. And while individual judges can certainly remain neutral notwithstanding their own prior professional experiences, this dramatic institutional skew toward those who went from advancing often quite aggressive arguments for government power to adjudicating those same kinds of arguments almost certainly has a marked effect on the development of legal doctrine.
None of this negates the value of Gorsuch’s core observation about the freedom-stifling proliferation of law or his compelling examples of regulatory and prosecutorial absurdity. But addressing “too much law” requires examining not just the producers of law but also the institutional constraints—or lack thereof—that shape their incentives. A judiciary that consistently enforces constitutional limits on government power will discourage excessive regulation by raising its costs. Conversely, a judiciary composed disproportionately of former prosecutors and other courtroom advocates for government that defers too much to the other branches will encourage precisely the kind of regulatory excess that Gorsuch decries.
Justice Gorsuch performs a valuable service by vividly cataloging the shocking extent of overregulation in America today. But neither he nor we should be surprised when legislators and administrators do precisely what the Founders expected them to do—namely, constantly test the outer limits of their own power and relentlessly push for more. Thus, real reform will require confronting uncomfortable questions about the judiciary’s role in enabling regulatory excess and considering how judicial doctrine and institutional culture may systematically favor extra-constitutional government power over individual rights.
Only by restoring meaningful judicial review, aka “judicial engagement,” can we begin to restore the full measure of constitutionally prescribed limits on government power.