EFFICIENT AND EFFECTIVE DEREGULATION
By Attorney Jonathan Emord
September 19, 2011
The federal bureaucracy is anathema to free enterprise and liberty in no small part because it operates through the use of prior restraints. Prior restraints impose blanket bans on means that frequently are innocuous, lacking an unlawful aspect, but may be a foundational act in what becomes an illegal enterprise. One effective means of liberating the market from burdensome restraints is to prohibit the bureaucracy by statute from using prior restraints and compel federal agencies to resort instead to suits before federal courts in the first instance (whenever seeking to arrest unlawful behavior). That statutory prohibition has the salutary and liberating effect of restricting use of coercive federal power until guilt is established before an impartial judiciary and leaves alone those innocent of wrong-doing who happen to use the same or similar means to achieve lawful ends.
We hear a lot from the Republican candidates about the need to relieve the private sector of regulatory burdens that limit free enterprise. Rick Perry, Ron Paul, Michele Bachmann, and Herman Cain have all expressed a keen interest in reducing the regulatory burden on industry (and with very good reason). Regulations are a particularly insidious form of taxation. They not only prohibit specific means, but they oftentimes force reliance on more costly means, to produce and sell goods. They also compel the hiring of regulatory attorneys, regulatory scientists, and regulatory risk managers. Because employees and consultants are a major expense for business, those outlays add to the costs imposed by our very high corporate income tax to deprive industry of the resources needed to progress, employ, and compete.