Why Has Congress Militarized the Bureaucrats?

The war on drugs and the war on terrorism, I noted in a recent Beacon post, have fostered a crisis mentality that has eroded traditional constraints on domestic law enforcement. The new zeitgeist has resulted in police departments increasingly using “no knock” raids and other military-type tactics formerly considered off-limits to them.

But other factors have also contributed to the growing use of paramilitary operations at home.

In a piece at Executive Branch Review (a new blog affiliated with the Federalist Society), former prosecutor John Malcolm blames Congress for helping to militarize federal regulatory agencies. Lawmakers are at fault, he argues, for passing vague statutes that have given regulators enormous power and discretion to enforce countless obscure regulations that many of the accused didn’t even know were on the books.

The militarization of federal regulatory agencies has led to numerous absurdities, including the following:

  • In 2011, armed agents from the Fish and Wildlife Service raided two Gibson Guitar factories, in Memphis and Nashville, Tenn., believed to have been illegally using raw ebony imported from India.
  • Also in 2011, a SWAT team from the Department of Education raided a home in Stockton, Calif., and pounced on its resident, Kenneth Wright. (Wright’s estranged wife, who had moved out a year earlier, was under investigation for financial aid fraud.)
  • In 2010, SWAT agents from the Food and Drug Administration raided a commercial dairy farm in Lancaster, Penn., for selling unpasteurized milk to willing customers across state lines.

(For details on these and other examples of militarized regulatory enforcement, see this recent piece from Deroy Murdock at National Review Online.)

Malcolm worries that incidents of “enforcement overkill” are eroding the public’s faith in the fairness and integrity of the nation’s legal institutions. “When [prosecutors and federal agents] engage in unnecessary theatrics or prosecute otherwise law-abiding people for ‘crimes’ that no reasonable person would have known was a crime,” he writes, “they (no doubt, unwittingly too) do more harm than good.”

Perhaps lawmakers will come to realize that they should deal with another problem facing the nation: the crisis of confidence in the justice system—a crisis of their own making.

Carl Close is Research Fellow and Senior Editor for The Independent Institute and Assistant Editor of The Independent Review and editor of The Lighthouse, The Independent Institute’s weekly e-mail newsletter.
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