PDF Summary:Over Ruled, by Neil Gorsuch and Janie Nitze

In Over Ruled, Neil Gorsuch and Janie Nitze examine the expansion of complex regulations in the United States and how it impedes individual liberty. They argue that the growing number of laws and administrative rules, coupled with the shift of authority from local to federal entities, undermines principles of self-governance and places excessive burdens on ordinary citizens and small businesses.

The authors also critique the concentration of power in federal agencies that increasingly interpret and create laws without direct public accountability. They caution that the erosion of judicial oversight and the growing criminalization of unintentional acts pose a threat to due process and equal justice under the law.

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Practical Tips

• Offer to host a study group at your home for local students. By providing a quiet and comfortable space, you can support their educational efforts. Coordinate with parents and students to establish a regular schedule that aligns with their academic needs.
• Create a personal case study by comparing different state-led initiatives and their outcomes in similar communities. Choose two or more towns or cities that have implemented similar policies and track their progress over time. Look for metrics like economic growth, employment rates, or quality of life indicators. Analyzing these comparisons can offer insights into the effectiveness of state-led strategies and the role of governance in shaping those outcomes.
• You can observe and analyze local government meetings to understand how democratic processes unfold at the state level. Start by attending city council or town hall meetings, which are usually open to the public. Take notes on the decision-making process, the role of citizen input, and the types of issues that are addressed. This will give you a firsthand look at democratic innovations in action and may inspire you to become more involved in local governance.
• Create a social media challenge to raise awareness and funds for local education scholarships. By using platforms like Facebook, Instagram, or TikTok, you can challenge friends and followers to contribute to a scholarship fund or start their own. As part of the challenge, participants could share stories of how education has impacted their lives or why they believe in supporting students, thereby creating a ripple effect of awareness and philanthropy.
• You can explore local educational funding opportunities by researching scholarships and grants specific to your area through online databases and community bulletin boards. By doing this, you might uncover lesser-known financial aid options similar to The Kalamazoo Promise that could help you or someone you know pursue higher education without the burden of excessive debt.
• You can support local businesses by creating a digital map of your area highlighting unique shops and services. Use a free online map-making tool to plot out local businesses, and share your map on social media to encourage community members to shop locally. This can help increase the visibility of small businesses and potentially drive more foot traffic to them, contributing to the economic revitalization of your area.
• Create a personal blog or social media page dedicated to a specific cause you're passionate about, using it to educate and rally others. By sharing stories, updates on local legislation, and actionable steps others can take, you can create a digital grassroots movement. This mirrors the way past reforms built momentum at the state level before reaching the national stage, and it allows you to contribute to the shaping of public opinion and policy from the comfort of your home.
• Engage in micro-volunteering to address small-scale community issues. Look for opportunities to contribute to your local area in bite-sized chunks of time. This could be as simple as spending an hour a week tutoring students in a subject you're proficient in, helping to clean up a local park, or starting a community garden. These small actions, when tailored to the specific needs of your community, can collectively lead to significant improvements.

The increasing concentration of power within federal agencies and the progressively blurred lines separating the different branches of government.

The authors argue that the growth in bureaucratic governance has worryingly concentrated authority among officials who are not elected. They thoroughly detail the way in which extensive mandates from Congress have enabled agencies to not only implement laws created by elected representatives but also to partake in actions that more and more mirror the tasks of creating and interpreting laws, thus blurring the clear divisions that the framers of the Constitution aimed to set between the three governmental branches, each responsible for executing, making, and interpreting laws.

The development of a robust administrative framework has led to the transfer of duties typically associated with the legislature and judiciary to a range of agencies.

The authors note that while the Constitution grants only Congress the power to create laws, it assigns the duty of interpreting these laws to the courts. In their discourse, Neil Gorsuch and Janie Nitze contend that there has been a growing departure from the fundamental constitutional tenets that govern the allocation of power among the government's branches. At the same time, Congress has not only passively accepted but also actively promoted the shift of significant legislative and judicial responsibilities to administrative bodies, which lack direct accountability to the citizenry.

Congressional grants of authority empower appointed officials to create rules that have a substantial impact on everyday life, impacting not only regular individuals like Marty Hahne but also well-known institutions such as the museum dedicated to Hemingway.

The book delves into how Congress increasingly delegates broad law-making authority to various agencies, instructing them with vague directives such as "proceed and act beneficially." For instance, Nitze and Gorsuch argue that legislative entities have empowered regulatory agencies to formulate rules that they consider necessary or appropriate for the public welfare, or to determine rates that are just and reasonable. This process effectively allows these agencies to enact regulations that profoundly affect numerous Americans, often with limited supervision from elected officials. This situation is clearly illustrated by the challenges faced by people such as magician Marty Hahne and those working at the Hemingway Museum, who find themselves subjected to burdensome and seemingly illogical mandates from unelected bodies, thus exerting considerable influence over many aspects of our daily existence.

Other Perspectives

• The rule-making process includes opportunities for public comment and participation, which can mitigate the impact of unelected officials making decisions.
• Congress retains the power to revise or revoke the authority it has delegated if it believes an agency is acting beyond its remit or not in the public interest.
• The expertise required to formulate rules for public welfare is not infallible, and agencies may rely on outdated or incomplete information, leading to regulations that do not effectively address current issues or that have unintended negative consequences.
• Many agencies are required to conduct cost-benefit analyses to ensure that the regulations they enact are justified economically, which serves as an internal check on their rule-making power.
• The mandates in question, while perhaps inconvenient, could be part of a broader regulatory framework that benefits society as a whole, even if the immediate effects on individuals or institutions seem negative.
• The rules created by these agencies are typically a response to legislative mandates, meaning that elected representatives have, at some level, directed the agencies to take action on specific issues.

Agencies assuming the roles of prosecutor, judge, and lawmaker have led to concerns about fairness and impartiality, a point underscored by the case of Michael Biestek.

The authors voice specific apprehensions regarding the accumulation of authority in agencies tasked with the creation, implementation, and interpretation of policies and directives. The authors argue that the impartiality and fairness of the proceedings are questionable because agency adjudicators often lack independence, are prone to pressure from higher-ups, and regularly move between various roles associated with the formulation, implementation, and interpretation of legislation. The instance where Michael Biestek's request for Social Security benefits was denied, with no possibility of judicial scrutiny due to the confidentiality of a contractor's information, is a case in point. Nitze and Gorsuch felt a strong obligation to voice their concerns about protecting fairness and procedural justice in the judicial system.

Other Perspectives

• The combination of roles within an agency can streamline processes, making them more efficient and less costly for taxpayers.
• The structure of some agencies separates the investigative and prosecutorial functions from the adjudicative function, which can help to safeguard the independence of agency adjudicators.
• Having experience in various aspects of policy work can make agency adjudicators better informed and more competent in their decision-making, as they understand the practical implications of laws and regulations.
• The use of administrative law judges within the Social Security Administration, who are meant to be impartial and have expertise in the relevant laws, could be seen as a specialized form of judicial scrutiny appropriate for complex benefit determinations.
• The focus on procedural justice might inadvertently prioritize process over the substantive justice of outcomes, which could lead to situations where the letter of the law is followed at the expense of delivering fair outcomes.

The situations involving Kevin George and Pankajkumar Patel highlight the diminished ability of the judiciary to examine the conclusions drawn by administrative bodies, particularly with respect to legislative interpretation and fact-finding.

Nitze and Gorsuch maintain that the anticipated judicial supervision of agency decisions, which was a fundamental goal of the Administrative Procedure Act, has failed to effectively limit the power of these agencies. The book emphasizes that when agencies construe statutes in a way considered "reasonable," it compels the judiciary to uphold these interpretations, even when they stray from the explicit purpose of the legislation. The authors argue that the dominant doctrines of deference have altered the "rule of law" into a system dominated by agency discretion, which conflicts with the fundamental tenets of governmental power separation and undermines the independence of the judiciary. The authors strengthen their case by examining situations such as Kevin George's objections to an agency's interpretation of the law and Pankajkumar Patel's dispute over the agency's evaluation of the facts. The highest court in the land determined that the actions of the agency were not subject to scrutiny by inferior courts, a point that Nietze and Gorsuch believe highlights the diminished ability of the judiciary to hold agencies accountable for major legal and factual errors.

Other Perspectives

• The Administrative Procedure Act provides a framework for judicial review that is still functional and allows for the judiciary to question and overturn administrative decisions.
• The APA's effectiveness in limiting agency power should not be solely evaluated based on select cases but rather on the broader landscape of administrative law and the numerous instances where courts have curtailed agency overreach.
• The judiciary's role is not to substitute its judgment for that of the agency but to ensure that the agency has stayed within the bounds of its statutory authority.
• The rule of law includes the principle of legal certainty, which can be enhanced by deference doctrines, as they provide a predictable framework for both agencies and regulated parties to operate within.
• The doctrines of deference like Chevron and Auer are themselves products of the judiciary and can be modified or overruled by the judiciary, indicating that the power of the judiciary is not undermined but exercised in a self-restrained manner.
• The assertion that these cases exemplify challenges in holding agencies accountable may overlook the complexity of administrative law and the necessity of balancing efficient government operation with legal oversight.
• The decision by the highest court could be interpreted as a means to streamline the legal process and avoid conflicting decisions, rather than a complete removal of oversight by lower courts.

The diminishing of executive supervision and the interruption of the interconnectedness envisioned by Madison.

The authors continue their incisive critique, arguing that the proliferation of administrative agencies has undermined the President's constitutional obligation to faithfully execute the laws. Neil Gorsuch and Janie Nitze contend that the expansion of federal bureaucracies and the rise of independent agencies outside the scope of presidential control have disturbed the "chain of dependence" envisioned by James Madison, which is meant to guarantee that the president is accountable to the citizens for the conscientious execution of laws.

Entities like the Federal Trade Commission have broadened their scope, functioning with minimal supervision from the executive branch, as evidenced by the case concerning an individual named William Humphrey.

The authors argue that the president has limited direct control over agencies such as the Federal Trade Commission. The writers ascribe this development to a pivotal decision by the Supreme Court regarding President Franklin D. Roosevelt's attempt to remove FTC Commissioner Humphrey. The Court's ruling upheld the legality of legislative actions designed to shield independent agencies from executive interference by limiting the president's authority to remove officials from these entities. The authors argue that this decision has significantly broadened the scope of federal power, primarily functioning beyond the immediate oversight of the Executive Branch, thus avoiding the democratic scrutiny of the voting public.

Practical Tips

• Develop a habit of reading public comments on proposed FTC regulations to gauge public perception and influence. Visit regulations.gov, search for FTC-related dockets, and read through the comments. This will help you understand how the public can interact with and potentially influence an agency that operates with minimal executive oversight.
• Create a personal case study by following a high-profile case handled by an agency. Choose a recent case that the FTC or another agency is involved in, and follow it from start to finish. Take notes on the agency's role, the decisions made, and the outcomes. This will help you understand the practical limitations of an agency's direct control in real-world scenarios.
• Write a letter to your representatives expressing your support for the independence of regulatory agencies, using your newfound understanding of their importance. This action reinforces the democratic process and shows elected officials that their constituents value the separation of powers. Your letter doesn't need to be complex; a simple statement of support for maintaining the integrity of independent agencies can make an impact.
• Engage in role-playing scenarios with friends or family where you simulate the decision-making process of federal entities. Assign roles such as a federal agency head, a local business owner, and a community member to debate and decide on a policy issue. This activity will help you appreciate the breadth of federal influence and the considerations that go into expanding its power.
• Develop a habit of writing reflective essays on the importance of public scrutiny in your own decision-making. For instance, after making a significant personal decision, take some time to write about how you arrived at your choice, who was affected by it, and how you might have benefited from external input or scrutiny. This self-reflection can help you internalize the value of seeking diverse perspectives and maintaining transparency in all levels of decision-making.

The growth of a complex and pervasive administrative network has rendered it difficult for even the most conscientious national leaders to oversee agencies effectively, as demonstrated by situations concerning Presidents from various administrations.

The authors note that even agencies theoretically subject to presidential oversight have become so large and complex that it's become increasingly difficult for any president to effectively manage them. Presidents Obama and Trump have both acknowledged the challenges associated with overseeing and regulating the continuously expanding scope of operations carried out by the federal government's agencies.

Practical Tips

• Create a visual map to track the relationships and oversight between different agencies in your area. Use a free online tool like Lucidchart or draw it out on paper. Start with one agency and research online to find out which other agencies it interacts with, which presidential or governmental bodies oversee it, and how it fits into the larger structure. This exercise will help you visualize the complexity and size of these agencies on a local scale.
• Implement a 'policy review' for your personal finances, akin to a government reviewing its departments. Every quarter, take a close look at your spending, savings, and investment strategies. Identify areas where you can cut unnecessary expenses or optimize your budget. For instance, if you notice a subscription service you rarely use, cancel it and redirect those funds into savings or debt repayment.

The proliferation of criminal laws and the diminishing protections afforded to individuals accused of crimes.

In the final part of the book, Nitze and Gorsuch examine how legislation related to criminality has broadened while the traditional safeguards for the accused have concurrently lessened. Neil Gorsuch and Janie Nitze argue that the federal criminal code has grown extensively, now including a wide array of new crimes that frequently do not require proof of criminal intent, while also introducing more severe punishments. The authors warn that expanding the scope of the legal system could lead to serious repercussions for ordinary individuals, who might face harsh penalties for actions they did not know were against the law.

The distinction between civil infractions and criminal offenses has blurred as the quantity of federal criminal legislation has expanded significantly.

The authors contend that the rapid increase in the number of federal criminal laws has resulted in circumstances where ordinary people might unintentionally break the law, not realizing they have done so. The authors argue that this inclination is particularly dangerous because of the increasing gravity of the repercussions linked to a multitude of federal crimes.

The sheer number of federal laws is so extensive that even individuals with the purest of intentions can find it challenging to fully understand the extent of legal limits, as evidenced by the legal issues faced by race car driver Bobby Unser.

Gorsuch and Nitze argue that the vast expansion of federal criminal laws has created a situation where even the most diligent citizens cannot fully comprehend the extent of actions considered illegal. The authors emphasize their point by recounting how Bobby Unser, a famous race car driver, risked criminal charges and jail time after unintentionally guiding his snowmobile into a prohibited wilderness zone during a blizzard. Unser's guilty verdict, as established by the court, highlights the reality that for numerous Americans, facing criminal charges has become a matter of chance, particularly in cases that may arise from an unintentional mistake.

Context

• There is often insufficient public education or resources available to help citizens understand new or existing laws, contributing to widespread ignorance of legal boundaries.
• Bobby Unser is a well-known American race car driver, famous for winning the Indianapolis 500 multiple times. His reputation in the racing world adds a layer of public interest to his legal troubles.
• The concept of overcriminalization refers to the excessive and broad scope of criminal laws, which can lead to ordinary citizens inadvertently breaking the law. This can occur when laws are numerous, complex, or not well-publicized.
• The U.S. Code, which contains federal statutes, is extensive, with thousands of pages that are continually updated, making it hard for individuals to stay informed about all applicable laws.

People like George Norris now face severe penalties for behaviors that were once addressed through civil or community interventions, as the distinction between minor violations and criminal offenses has grown less clear.

The authors argue that due to the sheer volume of federal offenses, the distinction between minor infractions and grave offenses has become blurred, resulting in harsh criminal repercussions for actions that might once have been resolved with less severe measures such as regulatory sanctions, local conflict resolution, or alternative interventions. They delve into George Norris's tale, a man whose enthusiasm for rare orchids led to his imprisonment as he ran afoul of complex regulations governing their importation. The authors argue that the situation involving Norris highlights a disturbing truth: even those without any intention to cause harm can face harsh punishments in times when more activities are considered unlawful and a broader range of conduct leads to serious federal repercussions.

Other Perspectives

• The use of severe penalties may be part of a strategy to address systemic issues within certain areas, such as environmental protection or public health, where previous civil interventions were insufficient.
• Some argue that the clarity of the distinction is upheld by the due process of law, where defendants have the opportunity to argue the severity of their charges in court.
• The perceived blurring of lines might be mitigated by efforts to improve legal education and public awareness of the law, rather than by reducing the number of federal offenses.
• The shift towards criminalization of certain behaviors could be a response to the evolving societal norms and values, which now demand stricter enforcement of laws.
• George Norris's case may be an outlier rather than a typical example of the criminal justice system's treatment of minor infractions.
• Some argue that the criminal justice system is designed to be impartial and objective, focusing on the letter of the law rather than subjective assessments of intent, to maintain consistency and fairness in legal proceedings.

The erosion of long-standing safeguards for the accused has transpired in tandem with a growing dependence on plea bargaining.

In the final part of the book, Nitze and Gorsuch examine how the proliferation of laws defining criminal behavior has eroded traditional safeguards for the accused, resulting in a rise of plea bargaining. As the number of criminal charges increases, coupled with the diminished requirement to establish criminal intent and the harshness of punishments, everyone participating in criminal trials—both the prosecution and the accused—frequently turn to negotiated settlements as a quick but onerous way to resolve criminal matters.

The diminishing clarity of criminal intent standards, coupled with the prevalence of ambiguous legislation, hampers individuals' ability to be properly alerted about actions that are illegal and to guarantee just punishments, as evidenced by the cases of two individuals, Joseph Morissette and another person.

The authors argue that the erosion of established criteria for proving both a wrongful deed and the intent to commit such an act, along with the broadening of comprehensive laws that cover a range of actions, complicates the assurance that people are properly aware of their legal responsibilities and that penalties are imposed only on blameworthy conduct. They explore cases such as Joseph Morissette's, who encountered legal consequences for taking what he thought were abandoned bomb shells from a public area, and Carlton Wilson, who risked imprisonment because he owned guns that, although initially obtained legally, he was later prohibited from possessing due to alterations in federal law. These cases. The authors argue that in a world filled with countless regulations, it is difficult to distinguish a genuine mistake from deliberate wrongdoing, placing individuals at risk of facing prosecution and punishment for actions that were not intended to cause harm.

Context

• The average person may not be aware of the nuances of criminal intent standards, making it difficult for them to navigate legal responsibilities and avoid unintentional violations.
• Legislators sometimes use broad or vague language to cover a wide range of scenarios, which can result in uncertainty about the specific actions that are prohibited.
• Diverse cultural backgrounds can influence individuals' understanding of laws, especially if they are not familiar with the legal system in a particular country.
• The legal system may become overburdened with cases that arise from unclear laws, diverting resources away from more serious offenses and affecting the overall administration of justice.
• The expansion of regulatory laws often includes strict liability offenses, where proving intent is not required, thus eroding the traditional mens rea requirement.
• The development of comprehensive laws often stems from a desire to address complex societal issues with a single legislative solution. Over time, as societies evolve, these laws can become outdated or overly complicated, necessitating revisions or clarifications.
• The vast amount of information available online can be overwhelming and may include inaccurate or outdated legal advice, further confusing individuals about their responsibilities.
• The concept of mens rea, or "guilty mind," is crucial in criminal law to establish a defendant's intent. Without clear standards, it becomes challenging to determine if someone acted with criminal intent or simply made an honest mistake.
• The incident occurred post-World War II, a time when military surplus, including bomb casings, was often left in public areas, leading to confusion about ownership and legality.
• The right to bear arms is protected under the Second Amendment of the U.S. Constitution, but this right is subject to various federal and state regulations. Changes in these laws can impact gun ownership rights, leading to legal challenges and debates about the balance between regulation and constitutional rights.
• Rapid technological changes can outpace legislation, leading to unclear legal standards for new types of conduct.
• Different jurisdictions may have overlapping regulations, making it challenging for individuals to comply with all applicable laws simultaneously.

The intensification of harsh mandatory minimum sentences and aggressive prosecutorial tactics pressure individuals like Aaron Swartz into accepting plea bargains, even when they maintain their innocence.

The authors examine how the growth of mandatory minimum sentences limits the discretion of judges to consider the specifics of each case and argue that prosecutors frequently leverage the possibility of harsh mandatory sentences to coerce defendants into accepting deals, indicating that opting for a trial could result in a significantly longer term of imprisonment. They contend that this approach has transformed the judicial process, shifting it from a system reliant on the criminal trial for due process to one where guilt is primarily established through non-transparent deals. They narrate the compelling tale of a proficient young advocate who was convinced of his client's innocence and, refusing to concede to the stigma of a criminal conviction, turned down a plea deal that would have led to a lesser sentence. Ultimately, Swartz ended his life when faced with the prospect of an extended period of incarceration.

"Over Ruled" serves as both a warning and a call to action for active involvement. The authors argue that the vision of intentional liberty conceived by the founders of the United States is under considerable threat due to the erosion of states' autonomy, the broadening scope of bureaucratic authority, and the increasing tendency to treat common behaviors as criminal offenses. While acknowledging the difficulties in changing the present course, they maintain an optimistic outlook for the future, citing a variety of new efforts across various levels of government that lay a foundation for elevating the significance of individual liberty and autonomous rule. The book delivers a persuasive appeal, underscoring the duty of each successive generation to safeguard the legacy of our Constitution, despite its imperfections.

Other Perspectives

• Aggressive prosecutorial tactics may be a response to the public demand for accountability and the need to effectively prosecute individuals who commit serious offenses, ensuring that justice is served.
• Mandatory minimums can serve as a deterrent by providing clear and certain penalties for certain crimes, which some argue is necessary to maintain law and order.
• The possibility of harsh sentences is part of the legal framework that legislators have put in place, and prosecutors are operating within those laws when they propose plea deals.
• This perspective may contribute to a defeatist attitude toward the trial process, potentially undermining public confidence in the justice system's ability to fairly adjudicate cases and deliver appropriate sentences based on the merits of each individual case.
• Plea negotiations are not entirely non-transparent; they involve oversight by judges who must approve any deals and ensure that they are fair and voluntary.
• Refusing a plea deal can sometimes result in a shorter sentence if the defendant is acquitted at trial.
• Swartz's actions could be interpreted as an attempt to highlight issues within the legal system, suggesting his refusal was a form of activism.
• "Over Ruled" may overstate the threat to intentional liberty, as the U.S. legal system still provides multiple avenues for appeal and checks on prosecutorial power.
• Federal regulations and bureaucracies can play a crucial role in standardizing necessary safety and quality controls across industries, which can prevent accidents and protect consumers.
• It could be argued that the criminal justice system still provides for defenses and exceptions that prevent the prosecution of truly common and innocuous behaviors.
• There may be a discrepancy between the intent of new efforts to promote individual liberty and the actual outcomes, as policies and initiatives can be co-opted or diluted through the legislative process.
• The concept of a duty to the Constitution may place undue emphasis on historical reverence over practical governance, potentially stifling critical thinking and debate about the nation's laws and policies.