If an action is really a crime and punishable under law, the matter should be decided by a local jury trial under the criminal code. This gives a jury the opportunity to nullify bureaucratic overreach or an absurd regulation.
It forces the government to prepare a case and justify its own actions, not just hide behind its interpretation of its rulebook. If government does not think it can prevail against common sense, it will back off and stop using the approach recommended by one EPA official — to come down hard on a few small operations and thus scare everyone into compliance, no matter how unreasonable the regulation.
The situation is getting worse and requires legislative remedy. A recent news item noted the federal regulatory rulebook had grown by 11,237 pages in the last three years, and that the description of a full-time employee was so complex it required 18 pages. All of these regulations purport to have the force of law upon every American, and every one of us is likely to be in violation of at least one of them.
Congress has become lazy and is far out of touch with the real world. Many bills are actually written by special interest lobbyists and further amended by other lobbyists, all of whom make sizable campaign contributions to the members of Congress who introduce or co-sponsor them. The legislation is frequently incomplete, either loaded down with subjective terms requiring judicial definition, or authorizing an executive branch regulatory agency to write the actual implementing regulations.
If Congress does not know enough to actually write all the regulations in the law, then they should not even vote on the legislation. They must not be allowed to duck responsibility for the consequences by delegating their legislative duties to another branch of government. The Constitution does not allow for that; the three branches are to be kept separate. In an attempt to evade the Constitution's restrictions on abuse of criminal and common law, "administrative law" was devised within the executive branch for use in the regulatory process, wherein single agencies can act as legislators (defining rules and regulations), executives (implementing them) and prosecutors and judges (punishing those who do not comply), without ever having to prove justification for their regulations. That is what the separation of powers into three branches was designed to prevent — arbitrary rule by unelected officials. State governments must assert their authority to nullify this state of affairs and resist all federal attempts to financially bribe or penalize them. The whole concept of "administrative law" must be eliminated from this government.
Once the concept of a single regulatory agency acting as legislator, prosecutor and judge has been expunged, and the self-financing cash flow is gone, many of those agencies will devolve to the state level where they are more accountable to the voters. Jury nullification will pare back the rulebooks, and fear of jury nullification will force regulators to assume more of an advisory role where they need to know what they are talking about. With their unconstitutional punitive power removed, they will become more of a public service agency whose main activity is writing news releases to keep the public informed about whatever the regulators don't like. Then they will be subject to rebuttal by the objects of their dislike, and the public can apply common sense to the matter.
William A. Coates