Regulation Nation

It is clear to me that we have become a “Regulation Nation.”  And we are governed by an “Administrative state.”

What do I mean by that?  I mean that we are being governed by regulations issued by administrative agencies, instead of being governed by laws duly passed by our elected officials. 

Why does that matter?  Because agencies are run by unelected, government bureaucrats who are beholden to nobody but the person who appointed them.  They don’t care what the voters think or want or don’t want.  They don’t have to care.  They don’t need your vote to stay in power.  They only need to appease the politician who appointed them.  If they just follow the yellow brick road, they will land on the other side of the rainbow.

Let me give you a few real-life scenarios.

For starters, my quarantine camp lawsuit is a perfect example.  What happened there is that the NYS Department of Health (DOH) issued an “Isolation & Quarantine Procedures” regulation.  The head of the DOH is Commissioner Dr. Mary Bassett.  She is appointed by the Governor.  Everyone that works for the DOH is unelected. They do not need to listen to voter wants/needs. Quite presumably, if the Commissioner or any of the government workers below her don’t do the bidding of their “boss,” then their days at the DOH would surely be limited.  

So, what happened in my quarantine case is that the DOH created a wholly unconstitutional regulation that allowed them to pick and choose which New Yorkers they could lock up or lock down.  That could have been forced isolation in your home, or they could have removed you from your home and put you into a quarantine facility of their choosing!  For however long they wanted. With no procedure for you to get out.  There was no age restriction, so they could have taken you, your child, your grandchild… Literally tearing families apart.  And they didn’t even have to prove that you were sick, or even that you had been exposed to a communicable disease!

The DOH gave themselves this phenomenal power. If that is unclear what I mean there, I will explain. The DOH wanted this unbridled power to be able to control 19 million New Yorkers with the stroke of a pen, the legislature wouldn’t give it to them, so they just made it up and issued it themselves in the form of a regulation (10 NYCRR 2.13).  No legislative consent given.  No voter input had.  Zilch.  A clear breach of separation of powers.  A clear affront on our Constitution.  A perfect example of the “Regulation Nation.”

This was the most unconstitutional regulation I had ever read in my 25 years of practicing law. It was an attack on the very basis of our freedom. I knew I had to stop it.

So, I sued Hochul and her DOH on behalf of a group of NYS legislators (Senator George Borrello, Assemblyman Chris Tague, Assemblyman Mike Lawler) together with a citizens’ group, Uniting NYS.  Our argument was clear: the DOH does not possess the power to make a law, and this was surely a law, despite the fact that they called it a regulation.  It conflicted with the Constitution. It conflicted with NYS law.  As Assemblyman Tague said at our press conference back in April:

“This policy’s aim to forcibly isolate law-abiding citizens is reminiscent of actions taken by some of the ugliest tyrannical regimes history has ever known. It has no place standing as law here in New York, let alone anywhere in the United States. Policies as dangerous as this should be debated and scrutinized in a public setting by elected representatives, not quietly slinked through regulatory approvals.”

On July 8th, the Judge ruled in our favor and struck down this stunning display of tyranny.  Of course Hochul and Attorney General Letitia James filed a Notice of Appeal, which means they intend to appeal the court’s decision and try to overturn it so they can get back that power.  It’s truly shameful.  Interesting how they haven’t yet moved forward with that appeal.  Well, maybe it’s not that interesting – after all, it is just 6 weeks until election day.  If you want more information about our case, you can find that HERE.

A few months ago, I was interviewed by Steve Gruber on America’s Voice Live to discuss this “Regulation Nation” phenomenon. That interview is HERE.

There have been a few recent United States Supreme Court (SCOTUS) decisions that positively tackled the same “Regulation Nation” problem. I touched on them briefly in my last Substack, but here they are again with a bit more detail:

• Biden’s Environmental Protection Agency (EPA), an agency in the Executive Branch under the President, made a regulation limiting power plant emissions. The regulation conflicted with the federal Clean Air Act. The EPA did not have the power to make that “regulation.” This summer, SCOTUS struck down the regulation as unconstitutional.
• Biden’s Occupational Safety and Health Administration (OSHA), an agency in the Executive Branch under the President, made a regulation requiring all employers in the US with 100 or more employees to require those employees to get the C19 shot or mask/test in order to go to work. OSHA did not have the power to make that “regulation.” In January, SCOTUS struck down the regulation as unconstitutional.
• Biden’s Centers for Disease Control and Prevention (CDC), an agency in the Executive Branch under the President, made a regulation imposing a nationwide eviction moratorium whereby prohibiting landlords from evicting tenants due to non-payment of rent. The CDC did not have the power to make the “regulation.” Last summer, SCOTUS struck down the regulation as unconstitutional.

There is sure danger living under a “Regulation Nation,” which is governed by an Administrative State. It’s quite logical if you think about it. If unelected bureaucrats can make rules/regulations that overstep their authorities, that conflict with the Constitution, that usurp the power of our elected legislators, then we become a totalitarian state. In that scenario, one person in the Executive Branch will then have a supreme power to tell agencies what to do, and those unelected agency actors will carry out the orders with obedience. “I am just following orders” is a very dangerous yet very real mantra in a “Regulation Nation.”

Bringing lawsuits, like mine and the other ones noted above, can be effective in stopping authoritarian rule. However, it’s not a sustainable model, and people get injured in the interim as lawsuits slowly wind their way through the courts.

So, it seems logical that we need to change the leadership at the top. We need Executive Branch leaders (Governors, Mayors, President…) who will uphold the Constitution and our separation of powers doctrine; not decimate it. 

Republished from the author’s Substack