The Government Law-Breaker

This piece appeared today on the American Thinker blog. It's too important to excerpt, so I'm presenting it in total.

April 09, 2010
Government Is the Biggest Lawbreaker
By Mark J. Fitzgibbons

Measured just by the number of victims, there is no close second place to government as the biggest lawbreaker. Measured in terms of impact, government lawbreaking is disabling our entire society.

When an individual or collection of individuals (such as a business) violates the law, there are victims who are harmed directly, and the law provides remedies. The law also recognizes that lawbreakers create harm to society as a whole, since the costs of lawbreaking are borne by society as well as by the direct victims. The law therefore exacts civil or criminal punishments on lawbreakers.

When government breaks the law, not just individuals, but entire industries are often the direct victims. Government lawbreakers, however, are not subject to the same standards as are individuals. Government lawbreakers have become arrogant, and government lawbreaking has therefore proliferated. If government were held to the same standards of legal sanctions for individuals, the weight of those punishments would actually crush government.

The question is: What can we do about government lawbreaking?

Philosopher John Locke wrote that the punishment should fit the crime, but that the purpose of criminal laws should be reparation and restraint. Those standards generally apply to non-criminal lawbreaking. That is, the punishment should require the injured to be made whole, if possible, and should be strong enough to discourage lawbreaking in the first place.

When individuals or collections of individuals violate the law, the number of direct victims is limited. When government violates the law, the number of direct victims is unlimited. Government has in place police forces, prosecutors, and a legal system to bring individual lawbreakers to justice. That same system does not protect society well when government breaks the law.

Government has established rules to protect itself against the calamities that would befall it if it were subject to the same levels of reparations and penalties for lawbreaking as apply to individuals. For example, governments have passed sovereign immunity laws making reparations for lawbreaking by government nearly impossible to achieve in many cases.

The system shields government from reparations for individuals. That makes restraints on government even more important. The Constitution was established with restraints in mind by expressly delegating only certain powers to the federal government. When constitutional restraints on government are ignored, the floodgates to government lawbreaking are opened wide.

That's the philosophical view. As a lawyer who regularly battles government lawbreaking, I can tell you that as a practical matter, it's much uglier and more mischievous. It's a problem embedded in the political establishment and the unelected regulatory bureaucracy. It's a disease of unparalleled magnitude, yet it is too rarely addressed even in print.

Just looking at some examples shows how disproportionate the system is against private lawbreaking versus government or public lawbreaking.

Bernie Madoff is in prison for defrauding many investors using a Ponzi scheme. The Social Security system has been pillaged. It is actually the world's biggest Ponzi scheme, but nobody has been punished.

Toyota is facing an auto industry record $16.4-million fine for failing to notify the government about defects. Would automakers Chrysler or Chevrolet, whose owners include the United States government, face fines of similar magnitude if they had engaged in the same conduct? The answer to that, of course, requires speculation.

But what if the Environmental Protection Agency is found to have violated the law by regulating greenhouse gas emissions of automobiles? The EPA was recently sued by Virginia Attorney General Ken Cuccinelli for that reason. Not a single automobile maker could violate the law for every car owner, but one government agency could, and probably did.

If a health insurance company were to violate the law, its victims would be limited to its policy holders. The individual mandate under ObamaCare is being challenged as unconstitutional and therefore unlawful as affecting every American.

After passage of ObamaCare, several companies announced their assessments that the new law would cost them hundreds of millions of dollars. Those announcements were made in compliance with the law, yet some Democratic members of Congress have demanded the company executives and their records for a hearing. That is the stuff of totalitarianism: punishing private compliance with the law when government is violating the law with impunity.

People often feel powerless to challenge government when it violates our paramount law, the Constitution -- and never mind the everyday, less visible violations of statutory and regulatory law by government. How do you fight Leviathan?

In the case of the executives called to testify before Congress, they and their lawyers could easily become heroes by going on offense at the hearing. Instead of testifying on their heels, they should identify the abominations in ObamaCare, expose the contributions received by the Democrats who called them to testify, and generally use the microphones to expose the hearing for what it is -- a circus. This is their Howard Hughes moment. Hughes, testifying before Congress, exposed his interrogators for the corrupt, incompetent politicians they were.

We're also starting to see more citizens organizing and challenging government. The legitimate application and enforcement of the Constitution is a main thrust of these new activists. Recently, Tea Party groups even formed a National Tea Party Federation to have a rapid response to the liberal media, which have aided and abetted government lawbreaking.

As people come to realize the government is the biggest lawbreaker, we may see the rise of a new breed of politicians and law enforcement officials who see their jobs as not merely tackling private sector lawbreakers, but tackling government lawbreakers as well. That may even be the big, innovative campaign promise that will sweep many new officials into office and sweep out incumbents who have tolerated, fostered, or engaged in government lawbreaking.

It's important to start, however, just with the recognition that government is by far the biggest lawbreaker in society. Solutions will continue to evolve from that.