"GOOD GOVERNMENT" REFORMS FOR REGULATORY INSPECTIONS
(The following is a list of "tinkering" ideas. If we're going tohave a regulatory "bill of rights," this is the very minimum thatought to be done).
1. Whenever an agency of the federal government conducts aregulatory inspection or search, it must provide the owner (or hisrepresentative) written notice of the legal basis for theinspection and/or search. If the government has a warrant, it mustgive the owner a copy of the warrant along with all supportingaffidavits (if the gov't has a really good reason forconfidentiality, it should be able to petition a court to have theaffidavits sealed). The government should also be required tofurnish the owner with a written list of the names, titles, andagencies of each government agent who is participating in thesearch and/or inspection. (Note that RCRA and CERCLA do notexpressly require the presentation of credentials prior toinspections).
2. The government must issue receipts for all items seized tothe owner (or his representative).
3. If any type of samples are taken--such as a chemical or soilsample--a split sample must be offered to the owner of thepremises. Note that the Clean Water Act and the Clean Air Act donot presently require the government to provide split samples.
4. If any photographs are taken, copies must be provided to theowner (or, upon request).
5. If government agents take or seize any documents, they mustgive the owner the opportunity to photocopy the documents on sitebefore their removal or, alternatively, provide for off-sitephotocopying within 48 hours (the owner may need the records tocontinue its day to day business).
6. During inspections and/or searches, government agents mustinform all employees prior to questioning that they have no legalobligation to answer questions from government agents and that theyhave the right to remain silent.
Mr. Chairman, I would like to thank you for this opportunity todiscuss federal regulatory abuse and the urgent need for acitizens' "Bill of Rights."
Unfortunately, the bill of rights that is before thissubcommittee does not go very far in alleviating these problems. Iwould therefore urge the 104th Congress consider some bolderinitiatives. Congress should reinvigorate the Fourth and FifthAmendments of the original Bill of Rights by:
(Here is the "paradigmatic" shift, i.e. real reform)
- Abolishing all federal statutes that authorize the warrantlessentry onto private property. In the absence of consent or exigentcircumstances, government agents should have to obtain a warrantfrom an independent magistrate;
- Abolishing all compulsory recordkeeping and reportingrequirements. The Fifth Amendment privilege is nullified when thegovernment forces business persons to confess regulatoryviolations.
The Fifth Amendment codified the common law guarantee againstself-incrimination, but a dubious Supreme Court precedent hasupheld recordkeeping and reporting requirements that undermine thatguarantee. The "Superfund" environmental statute, for example,requires individuals and businesses in the waste disposal industryto maintain records prescribed by EPA regulations and to make thoserecords available to EPA investigators during inspections. But aswas recognized by Justice Robert Jackson, among others, the FifthAmendment guarantee is essentially "nullified" if the governmentcan "require a citizen to keep an account of his deeds and misdeedsand turn over or exhibit the record on demand of governmentinspectors, who then can use it to convict him" of a crime. Indeed,Justice Jackson noted sarcastically that government could simplifylaw enforcement by merely requiring every citizen "to keep a diarythat would show where he was at all times, with whom he was, andwhat he was up to." (Shapiro v. United States, 335 U.S. 1, 70-71(1948)). The abominable practice of compulsory self-incriminationshould cease immediately. Congress should vindicate JusticeJackson's opinion by making it the law of the land. The "price" ofcompulsory testimony, reporting, or recordkeeping ought to beprosecutorial immunity. If it is necessary, that is, for governmentto utilize compulsory reporting or recordkeeping, the state shouldforgo the use of the criminal sanction against individuals andorganizations that reveal regulatory infractions. The FifthAmendment requires no less.
The Fourth Amendment was designed to limit official entries ontoprivate property, but Supreme Court rulings have laid out one setof legal standards for residential property and another set forcommercial property. Under current law, the Drug EnforcementAdministration must obtain a search warrant before it can raid acrack house, but the Environmental Protection Agency can conductwarrantless inspections of manufacturing plants virtually at will.Both liberals and conservatives have defended this jurisprudence byseizing upon the Fourth Amendment's reference to "houses." Thatreference is offered as conclusive evidence that the Framerspurposely left commercial property unprotected. Judge ElijahPrettyman answered that argument in 1949 when he wrote: "To viewthe [Fourth] Amendment as a limitation upon an otherwise unlimitedright of search is to invert completely the true posture of rightsand the limitations thereon." (See District of Columbia v. Little,175 F.2d 13, 17 (1949)). The Framers of the Constitution knew itwas impossible to enumerate all of our rights. They inserted theNinth Amendment as a reminder to the government that "theenumeration in the Constitution of certain rights shall not beconstrued to deny or disparage others retained by the people." Theargument that the Constitution condones sweeping inspection powersover commercial property is, to borrow Judge Prettyman's phrase, "afantastic absurdity."
Congress should repeal every federal law that authorizeswarrantless entries onto private property. Absent consent orexigent circumstances, government agents should be required toobtain a warrant from an independent magistrate. Magistrates, inturn, should not issue warrants unless there is "probable cause" tobelieve that a law has been violated. If those Fourth Amendmentprocedures can be honored when the FBI is attempting to apprehend"America's Most Wanted," they can surely be followed by theregulatory police in OSHA and the EPA.