I believe there are more instances of the abridgement of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations." - James Madison
Madison's concern is as germane today as it was when America was new: Threats to our freedom through "violent and sudden usurpations" elevate our vigilance to the highest level, but abridgements that are "gradual and silent" receive scant attention. Indeed, well after the purveyors of murder and mass destruction are driven from the world scene, America's seminal principles of freedom, democracy and the rule of law will continue to be assaulted by "those in power" - today, the modern government regulatory bureaucracy. Although its encroachments abound, nowhere is the intrusiveness more evident than in the assault on Americans' freedom to own and reasonably use private property.
Through laws such as the Clean Water Act and the Endangered Species Act, Congress delegated to federal agencies authority to regulate land use on private property under specified and limited circumstances. Yet, although these agencies' quest for "command and control" of private land use abrogates the rights of thousands of property owners daily, this diminution to our freedom goes largely unnoticed by most Americans.
In the CWA, Congress authorized the Army Corps of Engineers to regulate "navigable waters of the United States." Nevertheless, the Corps continuously asserts its authority to regulate non-navigable waters, such as isolated wetlands, vernal pools, prairie potholes, and drainage swales - areas wet during the rainy season, but with little or no connection to "navigable waters." For example, the Corps argued for years that isolated ponds and puddles were magically transformed into "navigable waters," and subjected to regulations, merely by the stopover of "migratory" birds. Finally, in SWANCC v. Army Corps of Engineers, the Supreme Court struck down the Corps' expansive "migratory bird" rule, holding that the Corps' authority does not extend to isolated wetlands that aren't adjacent to a traditional navigable waterway. The Court characterized the Corps' expansive approach as "(pushing) the very limit of the congressional authority."
But instead of reining in its excessive use of authority, the Corps turned right around and criminally prosecuted John Rapanos for filling isolated wetlands on his Michigan property that connected to a navigable waterway - 20 miles away. At the Corps' urging, Rapanos was sentenced to three years' probation and fined $185,000. The United States Supreme Court vacated the conviction and remanded the case to the lower court in light of its SWANCC decision. On remand, that court rejected the Corps' argument, ruling that "adjacent" means directly adjacent to navigable waters. With typical arrogance, the Corps has appealed this ruling. Under the ESA, property owners whose land use might "harm" a listed species can be severely restricted and even prevented from using their land. In an all-too-frequent practice, the federal regulators utilize "politicized" junk science to support the species' listing. One example: hatchery-spawned coho and naturally spawned coho have interbred in Oregon's Alsea River for over 50 years. Although the different means of fertilization produce genetically indistinguishable fish, the feds counted only the meager number of naturally spawned fish, while disregarding the thousands of thriving hatchery coho. Why? Because a smaller coho count implies that the species is imperiled, giving the feds authority over all private property for several miles on either side of the river. Through this and other disingenuous devices, these agencies effectively take control of millions of acres of private property without compensating the owners.
The sad truth is that this regulatory bureaucracy has become so large, unaccountable, and powerful that Congress effectively has forfeited meaningful oversight of how these laws are administered and enforced. This leaves victimized private citizens, especially smaller landowners and business persons, with the near-insurmountable burden of challenging the government's intrusive land use control in the courts. Confronted with the enormous costs, delays, and sleepless nights associated with going up against federal bureaucrats with no personal stake in the dispute, but unlimited tax-generated resources, most property owners simply capitulate rather than fight.
Until the President and Congress take back the "people's government" from the out-of-control regulatory bureaucracy, America's core values of freedom, democracy and the rule of law will suffer "gradual and silent encroachments." What hangs in the balance is the question implicit in Madison's warning: how many years of such encroachments before the "freedom of the people" is a thing of the past?
A former judge, state legislator and chief deputy attorney general of California, M. David Stirling is vice president of Pacific Legal Foundation (www.pacificlegal.org).