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

It's a threat to our fundamental rights, but courts refuse to change their approach.


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?

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.

When defendants finally get to court, judges often defer to the expertise of the administrative law judge and refuse to question the facts those "experts" have established. In some cases, judges won't allow evidence that was never presented as part of the agency's proceeding. The current system not only delays the application of justice, but it tips the scales throughout the process.

When an individual is fighting the government—either the IRS or any of the hundreds of alphabet-soup agencies—most rules are written in the government's favor. These include sovereign immunity and qualified immunity to protect the government and its officials from being responsible for unconstitutional actions, as well as evidentiary rules and timetables that typically benefit the government. This week the U.S. Supreme Court declined to consider two cases that would have challenged qualified immunity—so good luck with seeing that situation change anytime soon.

In an American Bar Association Journal article about the Soviet Union's legal system, it explained that, "courts are not simply judicial bodies as we know them. They are part and parcel of the single apparatus charged with bringing the dream of the Soviet state to its full reality." Likewise, these American administrative processes simply reinforce what Sandefur refers to as the "Administrative State."

How did we get here? These regulatory appeal processes evolved as a reasonable means to provide recourse when citizens petitioned the government for, say, a disability payment or some other financial benefit. As regulatory agencies' power expanded in the 1970s, these quasi-legal systems were increasingly used to resolve disputes whereby the government accused citizens of violations.

More fundamentally, this system is an outgrowth of the progressive tendency to elevate the rule by experts over the protection of individual rights. There's no obvious solution, but Americans ought to understand that the growth in government regulatory bodies ultimately undermines our rights. Our legal system is still praiseworthy, but it's more difficult than ever to get your day in court.

This column was first published in The Orange County Register.