OMB's Due Process Reform
March 16 marks the close of a public comment period for the latest commendable initiative by Russ Vought’s Office of Management and Budget.
The relentless expansion of the administrative state over the past century has spawned countless horror stories about government bureaucracies, administrative tribunals and others running roughshod over that category of sacred property rights related to fairness and due process. The problem is far worse than rogue bureaucrats. The administrative code and practices embody antirepublican, undemocratic policies and procedures. For example:
The Patent Trial & Appeal Board, of questionable constitutionality, employs blatantly unfair procedures and rules wielded by unconstitutionally appointed administrative judges whose suspect rulings invalidate issued patents and who even overrule the decisions of constitutionally appointed judges and juries in Article III courts.
The Federal Motor Carrier Safety Administration's unfair procedures put motor carriers in presumption-of-guilt, reverse-burden-of-proof, denial-of-due-process positions. FMCSA relies on flawed data and methodologies, ignores Administrative Procedure Act due process and mistreats objectively safe carriers.
This abuse of government power and encroachment on our inherent and constitutional rights rob American citizens of the blessings of liberty, limited government, and fairness and due process. The regulatory state ends up being ruled by thousands of tyrants.
The Trump administration has made deregulation a cornerstone of its tenure. This welcome effort has met with cries of thanks and relief from individuals and businesses subject to bureaucratic overreach, red tape and abuse. It’s also sparked institutionalized knuckle-dragging, “resistance” and utter disdain from the permanent bureaucrat cadre, along with its outside enablers in special interest groups and so-called “public interest” law.
With its “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication,” OMB has sought public input “to identify additional reforms that will ensure adequate due process in regulatory enforcement and adjudication.” This request for information poses questions seeking specific examples of how various federal agencies unevenly enforce and unfairly adjudicate rules and regulations.
The RFI is premised on “[t]he presumption of innocence, adjudication by a neutral arbiter, fair and speedy proceedings, and the prohibition of double jeopardy, [being] some of the time-honored protections that constitute the rule of law in America.”
To the Trump OMB’s credit, reestablishing due process and fairness, especially with respect to regulatory enforcement and adjudication, is a high priority. And it aligns with the precepts of John Locke. “[W]hosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate . . . .”
OMB undertakes to root out antidemocratic weeds and vines of the administrative state. Hopefully, it can rein in unelected government officials who take the excesses of regulation into their own hands, apply them capriciously or deny U.S. citizens core property rights.