That Dept. of Education SWAT team is the tip of the iceberg

Headlines were made this week when a SWAT team raided a home in Stockton, CA, looking for someone who wasn't there. Initial reports stated that the team belonged to the federal Department of Education, and was looking for someone on the grounds that they were delinquent on their student loans. Subsequent clarification revealed that the SWAT team belonged to the Department of Education's Office of the Inspector General, rather than to the 'teaching' side of things; and the raid was 'related to a criminal investigation', not delinquent loan payments. Nevertheless, the public was outraged - rightly so, in my opinion.

The thing that puzzles me most about this incident isn't that it happened, but that there's suddenly so much outrage about it. This has been going on for years - no, for decades! It involves dozens of federal, state and local government agencies. It's a creeping criminalization of almost every aspect of American life, and it troubles me deeply. As former US Attorney General Edwin Meese, III wrote last year:

... the average American’s deeply held beliefs about the freedoms he cherishes and the fundamental principles of his government are no longer as well-founded as they once were. Today, he is far more vulnerable than ever before to being caught up in a criminal investigation and prosecution -- and to actually being convicted and punished as a criminal -- for having done something he did not even suspect was illegal.

Criminal law has changed in the last 50 years. Once criminal law was about criminal acts that everyone knew were inherently unlawful (like murder, rape and robbery).

. . .

Today, the criminal law has grown as broad as the regulatory state in its sheer size and scope. In 1998, an American Bar Association task force estimated that there were more than 3,000 federal criminal offenses scattered throughout the 50 titles of the United States Code. Just six years later, a leading expert on the overcriminalization problem, Professor John S. Baker, Jr., published a study estimating that the number exceeded 4,000. As the ABA task force reported, the body of federal criminal law is “[s]o large… that there is no conveniently accessible, complete list of federal crimes.” If “ignorance of the law is no excuse,” then every American citizen -- literally, every single one -- is ignorant and in peril, for nobody can know all the laws that govern their behavior.

There's more at the link. Bold print is my emphasis. In conjunction with Mr. Meese's article, I also recommend one by Rachel Brand. She points out that the pressures to 'federalize' crime are nothing new. They're driven by our own desire to remove socially undesired and/or undesirable influences from our society. We, the public, put pressure on Congress through our elected representatives, and through the news media. That pressure on Congress results in Congressional pressure on executive agencies like the Department of Justice. It's largely that pressure, from us, through Congress, to the executive, that's caused the problem.

The result of this pressure has been a gargantuan expansion in Federal laws and regulations.

According to the Office of the Federal Register, in 1998, the Code of Federal Regulations (CFR), the official listing of all regulations in effect, contained a total of 134,723 pages in 201 volumes that claimed 19 feet of shelf space. In 1970, the CFR totaled only 54,834 pages.

The General Accountability Office (GAO) reports that in the four fiscal years from 1996 to 1999, a total of 15,286 new federal regulations went into effect. Of these, 222 were classified as "major" rules, each one having an annual effect on the economy of at least $100 million.

Again, more at the link.

In the new century, particularly in the aftermath of the terrorist attacks of September 11th, 2001, a new and extremely large federal government department (Homeland Security) has been added to those previously in existence, and a morass of new laws (e.g. the Patriot Act) and associated regulations has been enacted. The administration of President Obama has immeasurably accelerated this growth in federal laws and regulations.

Obamacare is a perfect example. Between March 22 and December 31, 2010, 6,123 pages of requirements related to the new health care law were added to the Federal Register. (For just one example, see the June 17, 2010, edition of the Federal Register [link is to an Adobe Acrobat document in .PDF format].) To further illustrate the problem, US News reports that "6 Pages of Obamacare Equals 429 Pages of Regulations . . . Section 3022 of the law, which is about the Medicare shared savings program, take up just six pages in the 907-page Patient Protection and Affordable Care Act. But HHS has turned that into 429 pages of new regulations." (If you'd like to confirm that for yourself, you'll find Section 3022 of the Act at this link, on pages 297-302; and the HHS regulations based upon it are here.) As one observer recently pointed out:

... the number of pages in regulations are already 114 percent as long as the number of pages in the Obamacare statutes! The statutes contain 961 pages compared to 1,093 pages of regulations.

. . .

What is more telling is the word count comparison. The Obamacare statutes together contain 425,116 words. Compare that to 1,147,271 words published so far in Obamacare regulation documents. The regulations are 270 percent as long as the statute itself.

The 1.1 million words in Obamacare regulations published so far are only a fraction of the regulations yet to come.

More at the link.

Once enacted, all these regulations have the force of law. If you or I disobey them, we can be liable to anything from a severe letter of reprimand, to denial of health care coverage, to misdemeanor or even felony charges. These can lead to fines or even jail sentences, possibly of many years' duration. Conviction may also involve the permanent loss of some of our most cherished civil rights and liberties.

The Washington Times points out:

According to a May report by the conservative Heritage Foundation and the liberal National Association of Criminal Defense Lawyers ... 60 percent of new criminal offenses created by Congress in 2005-06 lacked a “guilty mind” requirement. From 2000 through 2007, Mr. Meese and Mr. Thornburgh wrote, “Congress enacted 452 new federal crimes. That is an average of one new crime enacted every week of every year.” There are hundreds of thousands of regulations that can be enforced through the criminal process.

There’s no way ordinary citizens can be cognizant of all these regulations, which is why so many unintentional, relatively harmless acts lead to horror stories. A book called “One Nation Under Arrest,” edited by Paul Rosenzweig and Brian W. Walsh, highlights some of the worst, such as the seafood importers thrown in jail for eight years for packing lobster tails in plastic instead of cardboard. There also is the sad tale of an elderly orchid importer imprisoned for filing the wrong paperwork with the U.S. Fish and Wildlife Service.

More at the link. Bold print is my emphasis.

To make matters worse, there are growing conflicts between federal, state and local law. A few examples:

• Federal law prescribes certain penalties for immigration offenses, but some cities have declared themselves 'sanctuaries' for illegal immigrants, and won't permit their own law enforcement agents to co-operate with or assist federal authorities over such offenses.
• Federal firearms laws deprive convicted felons of the constitutionally-recognized right to keep and bear arms. However, some states restore all the civil rights of their citizens under state law if they don't re-offend for a given period. I know an inmate in federal prison who bought a firearm from a gun store, believing he was legally entitled to do so because his state had restored his civil rights. He claims to have been unaware that this did not apply to his federal civil rights. He was arrested and convicted for violating federal law by purchasing a gun.
• Federal laws criminalize the distribution, possession and use of marijuana; but some states allow its 'medicinal' use.
  

To ensure compliance with federal laws and regulations, there are well over 100,000 federal law enforcement officers, all with statutory powers of arrest and the right to carry arms in the performance of their duties. They're spread across many agencies, ranging from the obvious (e.g. the FBI, the US Marshals Service, etc.) to the seemingly weird (e.g. the Offices of the Inspectors General of the Railroad Retirement Board or the Small Business Administration). The Federal Law Enforcement Training Center, with facilities across the country, trains personnel from over 80 of these agencies. (I attended FLETC myself, at their main campus in Glynco, GA, during my service as a prison chaplain. They provide excellent training.) Other agencies (e.g. the FBI, the US Secret Service, etc.) prefer to keep aloof from this shared resource, for what doubtless seem to them to be good reasons, and maintain their own private training facilities.

It seems that as soon as any federal agency is given authority to make regulations that implement laws, it wants police with badges and guns to enforce them. That's why the Department of Education (or the Office of its Inspector General, to be precise) has its own law enforcement agents. (Last year it ordered 27 specialized police shotguns to arm them. I bet you never knew that shotguns were an instrument of education, did you?) They're the people who raided that residence in Stockton, CA this week.

For the life of me, I can't see the need for all these separate federal law enforcement agencies! There's no convincing reason why a central federal law enforcement function couldn't serve all other government departments, bureaus and agencies. However, to do that would wipe out a huge number of administrative and senior management positions in each agency . . . and that's why it's not going to happen anytime soon. Bureaucrats defend their turf, and their head count, and their budgets, like mothers defend their newborn babies!

Unfortunately, this proliferation of laws, regulations, and agencies and personnel enforcing them, has produced a society that's been described as 'overcriminalized' - where you and I might become criminals, in the eyes of the law, for doing something we didn't even know was illegal!

What to do about it? I submit the following is necessary:

• Reduce the size and scope of our overly bloated central government to what it was intended to be by our Founding Fathers;
• Dismantle all the laws, regulations and agencies that have proliferated to enforce the authority of that overly bloated central government;
• Restore to State and local government the authority to make and enforce laws and regulations that should be handled at such levels;
• Hold our elected representatives accountable by insisting that they read, and understand, every law they pass. No more 'passing laws so we can find out what's in them'; no more rushing legislation through without giving every representative - and every citizen! - time to study it in sufficient depth to know what it contains. As Radney Balko has pointed out, "If we merely required every congressman to actually understand a new law before voting for it, that would be a pretty good start."
• Finally, I'd like to see a provision that any and every law passed by a legislative body, and every regulation enacted in terms of that law, should apply with full force to every member of that legislative body. Legislators should not be able to exempt themselves from the laws they pass, or award themselves benefits or privileges in excess of those accorded to every citizen.

Those are my prescriptions to solve the problem. You may have better ideas - in which case, let's hear them in Comments.

However, if you believe that the present Congress or Senate will do anything to fix this problem, you're living in cloud cuckoo land. These are the same people who, faced with a financial crisis of such catastrophic proportions that it dwarfs every other threat confronting this nation, are sitting there arguing about whether to add another couple of trillion dollars to our national debt!

Politicians got us into this legislative and regulatory mess. It's going to take firing the political 'old guard', and electing representatives who'll take us, the people, seriously, to fix it.

Peter