State of Innovation

Patents and Innovation Economics

Regulatory Bill of Rights

As the regulatory state has increased the rights of citizens have been ignored.  The regulatory state avoids the limitations of the Bill of Rights by categorizing the regulations as civil laws, as opposed to criminal laws. Notice and hearing provisions of the Administrative Procedure Act do not provide protection for individual citizens who cannot monitor all areas of the government and who do not have the budget to engage in these activities. Thus, there exists a need for a regulatory bill of rights for citizens.

 

Regulatory Bill of Rights[1]

A) It shall be a defense to any regulatory action that the goal of the regulation can be achieved in a less intrusive manner or in a more cost efficient manner.

1) The relevant regulatory agency shall not define more than two non-contradictory goals for every regulation.

2) Any person subject to a regulatory action in which the regulatory agency has failed to undertake a reasonable analysis for less intrusive manners or more cost efficient manners of achieving the goals of the regulation shall be entitled to attorney fees.

3) Any person subject to a regulatory action can appeal to either a state court in which the alleged action occurred or federal court.  They shall have to the right to a trial by a jury of their peers and shall not be required to post a bond to appeal.

 

B) No person shall be subject to any regulation or law that is contradictory to any other regulation or law of the United States.

 

C) All regulations shall be interpreted strictly against the regulatory agency, any indefiniteness shall be interpreted in favor of the public.

 

D) Any person shall have the right to petition any regulatory agency to consider an alternative, less intrusive or less costly version of any given regulation to achieve the stated goal(s) of a regulation.

(1) Any person who prevails under this section shall receive 10% of any savings for the government for the next ten years.

(2) Any person who prevails under this section shall receive 2% in any increase in tax revenues above the growth in GDP from companies’ affected by the regulation for 7 years.

(3) The regulatory agency shall have six months to act on any such petition.  Failure to review a petition within six months by the regulatory agency shall be interpreted by a court of review as a presumption that the petition is correct.

(4) Any person’s petition that is rejected by the regulatory agency shall have the right of review by any federal court.

 

E) Any person shall have the right to petition any regulatory agency to consider an alternative, less costly manner of conducting the regulatory agency’s business.  The petition must show at least a 20% saving in regulatory agency’s manner of doing business, without reducing the work force of the regulatory agency, the salaries and benefits of the work force, and without reducing the effectiveness of the regulatory agency’s state goals.

(1) Any person who prevails under this section shall receive 10% of any savings for the government for the next ten years.

(2) The regulatory agency shall have six months to act on any such petition.  Failure to review a petition within six months by the regulatory agency shall be interpreted by a court of review as a presumption that the petition is correct.

(3) Any person’s petition that is rejected by the regulatory agency and shall have the right of review by any federal of state court.

 

F) No regulation shall be valid or enforceable that Congress, or the federal government do not have to comply with the regulation in question, with the exception that Congress or the federal government do not have to comply with the regulation in question during a National Emergency.

 

(G) Any regulation, law, or spending provision that does not have a clear national purpose or disproportionately favors or disfavors a particular sector of the country shall be invalid.

(1) Private citizens shall have a right to enforce this Right in State or Federal court.

(2) All taxpaying citizens of the United States shall have the have standing to enforce this Right.

(3) Any private citizen that prevails in an action to enforce this Right shall have the right to 1% of all monies that would have been spent under the regulation, law, or spending provision plus attorney fees.

 

Why is this needed?

There is almost nothing that a regulatory agency cannot do to you and for most cases you are not protected by the Bill of Rights.

Although criminal penalties tend to be more severe than civil and regulatory remedies, perhaps only the death penalty is unique to the criminal law. Property is taken by taxation, civil fines, civil forfeitures, and compensatory or punitive damages; individual liberty may be denied by such civil procedures as quarantine, involuntary civil commitment, and the military draft. Thus, what principally distinguishes the criminal sanction is its peculiar stigmatizing quality, even when sentence is suspended and no specific punishment follows conviction. (Emphasis added) Read more

This article then points out that in criminal cases strict subject to strict standards under which the government may act.  It has to comply with strict due process, search and seizure rules, and issued of unconstitutionally vague statues.  None of these is true if the agency characterizes the penalty as a civil penalty.[2] As the article explains

The U.S. Supreme Court has had some difficulty in determining which of these various civil-criminal hybrids (in particular, involuntary civil commitment of dangerous persons, civil fines, civil forfeitures, and occupational disqualifications) are subject to constitutional criminal procedures. After some vacillation, the Court, in a series of cases decided in the late 1990s, seemingly held that constitutional criminal procedures are either fully applicable or do not apply at all; such procedures will be deemed applicable only to offenses that are labeled as criminal or which are overwhelmingly punitive in purpose or effect (Klein).  (Emphasis added)
Read more

This means that government can avoid constitutional protections in most cases just by “deeming” then civil instead of criminal.  Clearly, the regulatory state has made most constitution protection irrelevant.

 

History of Citizens Demanding Government Respect Their Rights

England and it colonies have a history of demanding that their government respect their rights.  This excellent article, A Brief History of the Bill of Rights,traces the history of our Bill of Rights.[3]

The Bill of Rights, ratified in 1791, was the result of more than a century of experience with rights in America and many centuries before that in England. The major British precursors to the Bill of Rights are:

The Magna Carta (1215) In 1215, a group of English barons, tired of heavy taxes and arbitrary actions by the king, forced King John to sign the Magna Carta (Latin for “great charter”). It guaranteed such fundamental rights as trial by jury and due process of law, a requirement that government be fair in its actions. Originally, these rights applied only to noblemen, but over time they were extended to all English people. The Magna Carta established the principle that the monarch’s power is not absolute.

Petition of Right (1628).The monarchs of England did not always respect the Magna Carta in the 400 years that followed its signing. Parliament, the English legislature, gradually grew in influence. In 1628, Parliament refused to approve more taxes until King Charles I signed the Petition of Right, which prohibited the monarch from arresting people unlawfully and housing troops in private homes without the owners’ consent.

Bill of Rights (1689).Before William and Mary could take the British throne, a condition of their rule was agreement to an act of Parliament in 1689 known as the Bill of Rights. It guaranteed the right of British subjects to petition the king and to bear arms. It prohibited excessive bails and fines and cruel and unusual punishment. This British Bill of Rights protected far fewer individual rights than the American Bill of Rights adopted a century later. Also, the British Bill of Rights was a statute, part of everyday lawmaking — and could be changed easily — rather than America’s constitutional amendments, part of the most important, most fundamental legal document of the land.

It is time for all common law countries to remind their governments that their power is not absolute and governments work for the citizens not the other way around.  This regulatory bill of rights is a step in changing the balance of power between governments and their citizens.  It demands, at the least, government regulations not be contradictory and that they be effective, efficient, and as in obtrusive as possible.

 

Input

I would appreciate any input in improving the Regulatory Bill of Rights.


[1] My good friend, entrepreneur, and economist Rodney Preisser provided me the inspiration for this idea.

[2] This article points out that a few rare exceptions, such as regulatory takings.

[3] There is no such thing as “positive rights” and “negative rights.”  Positive rights are an attempt to require slavery and are complete nonsense.

 

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December 2, 2010 - Posted by | Regulatory bill of Rights | , , ,

3 Comments »

  1. […] has become and how Bzyantine our regulatory environment is.  I have suggested that the US needs a Regulatory Bill of Rights to provide citizens protections from excessive and contradictory regulations.  The Bill of Rights […]

    Pingback by Obama: Make Regulation Efficient « State of Innovation | January 19, 2011 | Reply

  2. […] In order to achieve sustained growth, we need to not only cut government spending, but we need serious regulatory reform.  The present regulatory structure is completely biased towards more regulation and more intrusive regulation.  We need a mechanism that changes this bias if we are going to have sustained growth.  One potential solution would be a Regulatory Bill of Rights. […]

    Pingback by Welcome to the Global Financial Meltdown | Blog of Dale B. Halling, LLC - Intellectual Property Law Firm - Patent Attorney - Patents, Trademarks, Copyrights | August 13, 2011 | Reply

  3. […] broad reaching legislation that would provide direct relief to people like the Sacketts, entitled Regulatory Bill of Rights.  It requires agencies prove that the regulation achieves its purpose and that it is the least […]

    Pingback by What is Regulation? « State of Innovation | June 28, 2017 | Reply


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