As social policing has skyrocketed in American society, the number of codified laws has as well. That phenomenon is not lost on Associate Supreme Court Justice Neil Gorsuch and in his new book Over Ruled he explores how the exponential increase in laws has negatively impacted the lives of everyday Americans.
Case Study: John Yates
One of the anecdotes that stuck out to Megyn from Justice Gorsuch’s book was that of John and Sandra Yates. The two were high school sweethearts living in Florida when one day John, the captain of a commercial fishing crew, was stopped by an agent while on the water. The agent insisted on measuring his stock of red grouper on board, only to then measure the stock again after John’s vessel returned to dock days later.
Three years lates, John was arrested at his home for a violation of the 2002 Sarbanes-Oxley Act, a policy instilled after the Enron accounting scandal. While the act intends to prohibit fraudulent financial reporting by corporations, it was used against the Yates for the alleged throwing overboard of his undersized red grouper stock causing him to have “destroyed other tangible objects” involved in the financial operations of his business.
Federal authorities pursued the case, secured a conviction, and sent John to jail for 30 days. Outraged by the incident, Sandra fought back and took her husband’s case all the way to the U.S. Supreme Court. They won the appeal by a single vote in a precedent-setting verdict that will protect those who find themselves in a similar situation. “Sandra is really the heroine of the book,” Megyn said. “She brought this case, notwithstanding the enormous challenges of doing that when you don’t have a lot of money.”
The Human Toll
The Yates’ story represents just one example of what Gorsuch calls the “human toll” of an overzealous legal system. “John was no longer able to pursue his life’s dream of being a commercial fisherman and was put out of work. His wife now supports the family and they live in a trailer,” he explained. “That’s the human toll of too much law.”
Justice Gorsuch attributes this growing toll to the rapid growth of codified law. “Everybody says Congress isn’t busy – they write two to three million words of statutory law every year,” he said. “Forget about Congress, that’s just the tip of the iceberg. The Federal Register used to be 16 pages long… Now, every year, we see 60,000 to 70,000 pages added.”
The sheer volume of law has begun preventing Americans from protecting themselves from prosecution. “It’s just spun out of control to where no-one could ever understand what all the laws are out there and how many we violate in a day,” Megyn noted. For example, a six year old once landed in court for picking a tulip near a bus stop and kids have been shutdown for running lemonade stands without a license.
Then vs. Now
According to Gorsuch, the founding fathers’ original intention was to make lawmaking difficult. The intricate system of checks and balances was created to “take government off the backs of the people and to keep it off,” as Megyn recounted from his book.
If the legislative process was working as intended, “we’re supposed to have the wisdom of the masses, all the people, the representatives coming together, compromising, working through problems and passing laws we can all agree on,” Justice Gorsuch explained.
Instead, lawmaking has been largely outsourced to federal agencies and Americans are some 10 times more likely to face an administrative judge (i.e. a federal agency representative) than a regular judge and jury. This deviation from standard procedure is why, Justice Gorsuch said, “agencies almost always win before their own judges in ways that they wouldn’t win in court.”
Justice Gorsuch recalled one such case from his time as a judge on the U.S. Court of Appeals when the federal government accused a small healthcare company of Medicare fraud. Six years of administrative law proceedings ensued before his three-judge panel determined the prosecution had it wrong. “It turned out the government had just become confused,” he said. “It was producing so many rules so fast it had no idea that it was accusing somebody for violating rules that didn’t even exist at the time.”
You can check out Megyn’s full interview with Justice Gorsuch by tuning in to episode 856 on YouTube, Apple Podcasts, or wherever you like to listen. And don’t forget that you can catch The Megyn Kelly Show live on SiriusXM’s Triumph (channel 111) weekdays from 12pm to 2pm ET.