The Deck Is Stacked Against Americans Who Try To Sue Government Officials

Our nation’s judicial system has its share of problems and injustices, but an independent judiciary remains one of the crowning achievements of our relatively free society. Authoritarian countries have judicial systems, but citizens in those benighted places lack due process because they are playing a game with house rules. And the house always wins.

Yet the federal government and states operate a series of quasi-judicial systems that function like a rigged card game. The stakes are high, but the player doesn’t have a chance. I’m referring to the way that powerful state and federal regulatory agencies enforce Byzantine codes through an administrative process that has many trappings of the traditional court system.

Let’s say a state or federal labor agency accuses your business of shortchanging workers, or an environmental agency accuses you of despoiling a wetland as part of a construction project. Agency officials make mistakes or misinterpret the law, so you attempt to have your day in “court” to protest a fine or regulatory enforcement action.

Your case will come before an administrative law judge, but these aren’t the same as court judges. They sometimes are employees of the agency. Other times, administrative judges are dispatched from a clearinghouse agency that claims to provide neutral decisions. They operate through a looser set of rules than the judiciary and might be expected to share certain bureaucratic pre-dispositions.

It’s no surprise how often administrative opinions reflect the outlook of the agency, although on occasion these arbiters defy the odds. Even when they do, the agency itself can often overrule the finding of the administrative law judge. How’s that for a stacked deck?

A case before the Arizona Supreme Court touches on that due process issue. As the Goldwater Institute’s Timothy Sandefur explains, the Arizona Clean Elections Commission accused an educational foundation of running political ads. The ALJ sided with the foundation in a jurisdictional matter—and then the commission simply overrode that decision.

“If John Does is charged with, say, running a business without a required license, the agency could level an accusation, and allow him to appear at a hearing to argue why the agency is wrong,” Sandefur wrote. “But even if he persuades the judge to rule in his favor, the agency can simply set aside that ruling and declare John guilty notwithstanding.”

As Sandefur added, bureaucracies “hold immense power to control how businesses operate, how private property is used, and countless other aspects of private life,” yet the law often allows them “to override the basic principles of due process.”

This entire regulatory appeals process provides a fig leaf of independence, but that patina of judicial oversight is arguably worse than rule by edict. In the latter case, we at least know what’s going on. With a process where the agency almost always wins, the government can claim it thoroughly vetted the defendant’s allegations through a fair process.

Defendants in administrative proceedings have the right to their day in the genuine court system, but defendants generally can’t get there until they’ve exhausted their administrative remedies, which can sometimes take years.

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