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The Energizer Leviathan: Still Growing and Growing

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President Bill Clinton has repeatedly announced that “the era of big government is over.” Many Republican congressmen have responded by laying down their ideological swords and pretending their work is done. But if freedom is to be revived in this country, Americans must begin paying less attention to the platitudes in politicians’ speeches and more attention to the nasty details in Federal Register notices and new laws.

Contemporary Americans face far more threats and abuses from government than did their forefathers — from the recycling police waiting to paw through their garbage, to the child-protective services lurking to grab their kids if no baby sitter is waiting for them after school, to the IRS scheming to ruin businessmen who have the temerity to deal with independent contractors, to local politicians dispensing cable television monopolies and forcing citizens to bankroll broadcasts of city council meetings 24 hours a day.

Much of the starkest growth in government power since 1980 has occurred in environmental-policy areas — as politicians and leftists have become adept at concocting earth-friendly pretexts to multiply their own power. While many congressmen have recognized these abuses, others — such as Newt Gingrich — have sought favor with the dominant news media by scorning property rights to prove their love of soft, furry creatures.

The rights of hundreds of thousands of Americans have been shredded by federal proclamations of the sanctity of such species as the Soccorro isopod, the fringe-toed lizard, the kanab ambersnail, and the fairy shrimp. The Interior Department has placed more than a thousand species on the endangered list and requires little or no substantive evidence to add more to the list.

Once a species is listed, Fish and Wildlife Service agents fan out across the land to browbeat people into surrendering to their demands concerning supposed threats to “potential” habitats of the specified species. Even property miles away from any endangered species can be frozen by federal fiat. In New Jersey, 77-year-old Grace Heck was prohibited from building on land she had bought for her retirement, because the federal Fish and Wildlife Service ruled that there was an endangered species of plant “within five miles of the proposed project site.”

As a Wall Street Journal editorial noted, “Enforcement of the act is being effectively steered by the BANANA: Build Absolutely Nothing Anywhere Near Anything.” Richard Stroup, former chief economist of the Interior Department, declared: “The Fish and Wildlife Service faces no budget constraint on the number of acres it can control in the name of endangered species, so it always wants more.” Each allegedly endangered species added to the list increases the arbitrary power of Fish and Wildlife Service agents.

The Fish and Wildlife Service announced last May that it expects to soon have 18 million acres of private land locked up under so-called habitat conservation plans that restrict owners’ use of their property. In addition, more than 10 million other acres of private and public land have come under either temporary or quasi-permanent control of federal environmental dictates as a result of the Endangered Species Act. The total amount of land that has been affected by the ESA is equivalent to cordoning off the entire states of Massachusetts, Vermont, New Hampshire, and Connecticut.

Yet, despite Uncle Sam’s overreach, the leading bill to “reform” the act, sponsored by Sen. Dirk Kempthorne (R-Idaho), could actually increase the power of federal agents over landowners, and it does little or nothing to fix the law’s basic defects. There has been scant Republican enthusiasm for addressing the fundamental inequity of the law: de facto confiscation with compensation.

The federal wetlands hydra continues sinking its talons into more private land. Last December, the Clinton administration announced changes that will make it much harder for individuals with small areas of alleged wetland to get approval for modifying their land — changes that are expected to greatly worsen bureaucratic delays by the Army Corps of Engineers. The National Association of Home Builders (NAHB) reports that the new permit restrictions “will be particularly devastating in the West.”

At the same time, the Clinton administration is seeking to ignore or get Congress to overturn a January federal court decision that found that the administration violated federal law in 1993 when it unilaterally greatly expanded the list of banned activities on wetlands. According to NAHB, federal wetlands enforcers have subsequently lied to homebuilders, ludicrously telling them that the court decision applies only to the District of Columbia.

In the 1950s, leftists helped spur a backlash against Sen. Joseph McCarthy by highlighting cases of innocent persons who lost their jobs as a result of his baseless accusations. Vastly more persons have lost their livelihoods as a result of federal prohibitions imposed on landowners with the flimsiest of legal pretexts. Yet, there has been little uproar — and minimal attention on Capitol Hill — over how bureaucratic tyranny wrecks the lives of landowners. Apparently, owning land is a surer proof of guilt than being a member of a Communist front group.

The increase in federal power is now practically on automatic pilot. The laws are so expansive and the bureaucrats so ambitious that they simply squeeze a little more power out each year. Last year, Food and Drug Administration Commissioner David Kessler revealed to the world that cigarettes are actually “drug-delivery devices” — and thus that his agency was entitled to dictate how they are sold, how they are advertised, how old people must look (27) to buy them without showing identification, and so forth. Kessler’s action is a mockery of the federal statute defining medical devices — but his power — lust made him a media hero. And Kessler’s action paved the way for the amazing “peace deal” between the big tobacco companies, big government, and a swarm of slimy lawyers — a deal designed to eventually forcibly commandeer control over the lifestyle of many Americans.

Absurdity is no longer a barrier to the growth of Leviathan. The Equal Employment Opportunity Commission in March sued United Parcel Service for refusing to hire one-eyed drivers for its big trucks. (The EEOC claimed that the refusal violated the Americans with Disabilities Act.) EEOC lawyer Bill Tamayo told Traffic World Magazine: “If they [UPS] feel that these people cannot do the job, then let them prove it. Don’t assume that people with one eye cannot drive.” Yet, the National Transportation Safety Board prohibits one-eyed drivers from driving any truck weighing more than 10,000 pounds. Federally defined “fairness” to the handicapped apparently now obliges shipping companies to risk the lives of others by using truck drivers who have little or no depth-perception.

The EEOC is also bailing out nightclub comics with its new mandate for employment rights of the mentally ill. Employers may now be obliged to accommodate workers taking antidepressants by letting them arrive later in the morning or by providing time off (“reasonable accommodation”) for workers who announce they are “depressed and stressed,” or by providing “job coaches” to people acting hostile and abusive to coworkers or customers. Considering the “protections” the EEOC demands for the so-called mentally disabled, surliness could become the secret to achieving de facto job tenure.

The Americans with Disabilities Act continues its burlesque act of uncommon sense in other ways. A federal judge ruled last year that the Iowa State Penitentiary violated the rights of an asthmatic mass-murderer by refusing to provide him with personal cable TV in his cell. (He claimed that smoking by other prisoners in the TV room prevented him from watching TV there.) The YMCA in Boston is being sued for $20 million in damages by a deaf lifeguard who was dismissed after the YMCA, seeking to comply with the ADA, established clearer guidelines on who could be a lifeguard.

Unfortunately, these issues have not held the attention of many Republicans who claim to be concerned about freedom. After Newt Gingrich won reelection as House Speaker last January, he issued a call for the House Ways and Means Committee to “get in the habit of a kind of aggressive oversight” on NAFTA and the World Trade Organization so that the committee could report “to the nation on whether or not our interests are being protected.” Unfortunately, Gingrich shows little or no concern for ensuring that congressional committees perform aggressive oversight over the violation of Americans’ rights by federal agencies.

Few Americans — and few congressmen — are paying attention to the constant growth in the federal government’s power to punish American citizens. The 103rd Congress (1993-94) passed more than seventy criminal statutes, and the 104th Congress (1995-96) passed more than twenty more, according to a recent piece in the New York Law Journal. Every new criminal penalty that congressmen enact symbolizes a grant of new coercive power to government agents and federal prosecutors. The casualness with which Congress continues to pass such laws — and to federalize every crime except for walking on the grass in the city parks — epitomizes the profound statist bias of congressmen of both parties.

Many Republicans have supported measures that vested sweeping arbitrary powers in the hands of federal officials in the name of the war on crime or the war on drugs. But, as Montesquieu wrote, “As [government] power grows, so security diminishes.” The more government tries to protect everyone from everything, the more cause Americans have to fear the government. The more power politicians seize to supposedly protect people, the more power government agents have to accost, arrest, and imprison private citizens who pose no harm to their neighbors.

British legal philosopher A.V. Dicey observed early this century:

“Every law or rule of conduct must lay down or rest upon some general principle, and must therefore, if it succeeds in attaining its end, commend this principle to public attention or imitation, and thus affect legislative opinion. . . . The true importance, indeed, of laws lies far less in their direct result than in the effect upon the sentiment or convictions of the public.”

The profusion of new laws and regulations in recent decades is fundamentally undermining Americans’ habit of self-reliance. Americans today are far more in the habit of looking to government action than they were even 20 years ago.

Congress has shown both cowardice and negligence in refusing to reform laws that wreak social chaos and violate individual rights. Each member of Congress will collect over a quarter-million dollars in pay during the life of the 105th Congress — far more than the net worth of all but a tiny minority of Americans. How many congressmen will actually earn even a part of that salary? How many congressmen deserve the same respect you would naturally give to a competent auto mechanic? Many allegedly conservative congressmen seem terrified of appearing “politically incorrect” by standing up for property rights, or firearm rights, or contract rights — or for the simple principle that politicians have no right to run everyone else’s life.

Congressmen have the choice of doing the intellectual heavy lifting needed to build the case in voters’ minds against big government — or of merely waiting to receive President Clinton’s latest “compromise.” Congressmen can either take a stand and vigorously resist the growth of government power — or acquiesce in the further repression of the citizens who sent them to Washington.

Americans need to ask about each new federal regulation and each proposed law: Is it compatible with the Constitution and with a commitment to freedom and individual rights? The alternative is to continue sliding down the slippery slope to an ever more powerful Leviathan.

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    James Bovard serves as policy adviser to The Future of Freedom Foundation. He has written for the New York Times, The Wall Street Journal, The Washington Post, New Republic, Reader's Digest, Playboy, American Spectator, Investors Business Daily, and many other publications. He is the author of a new e-book memoir, Public Policy Hooligan. His other books include: Attention Deficit Democracy (2006); The Bush Betrayal (2004); Terrorism and Tyranny (2003); Feeling Your Pain (2000); Freedom in Chains (1999); Shakedown (1995); Lost Rights (1994); The Fair Trade Fraud (1991); and The Farm Fiasco (1989). He was the 1995 co-recipient of the Thomas Szasz Award for Civil Liberties work, awarded by the Center for Independent Thought, and the recipient of the 1996 Freedom Fund Award from the Firearms Civil Rights Defense Fund of the National Rifle Association. His book Lost Rights received the Mencken Award as Book of the Year from the Free Press Association. His Terrorism and Tyranny won Laissez Faire Book's Lysander Spooner award for the Best Book on Liberty in 2003. Read his blog. Send him email.