The Shifting Ground of Property Rights

Article excerpt

Frustrated by filibuster in the Senate, detoured by dissent in the House, Clintonites are poised to make their greatest impact in the alphabet soup of federal agencies that are the last bastion of executive power. The administration that promised "change" is about to change the rules.

Clinton's activist agency heads are busy writing new regulations and rewriting old ones in order to undo what they see as 12 years of deregulation by the Republicans. The full measure of the Clinton administration will be felt in the sum of its thousands of regulatory changes.

Whether new interpretations of old legislation or new rules implementing new laws, federal regulations can have dram Small alterations in the definition of wetlands could halt development on 200 million acres nationwide, stilling tractors in parts of the Midwest and ending construction throughout most of Alaska. Minor changes in endangered species regulations could kill the Texas and Louisiana shrimp industries Reformulated federal mining rules could make worthless thousands of acres in five Rocky Mountain states. Expanding the buffer zones around Civil War battlefields will almost certainly mean condemning private homes in Sharpsburg, Md., and at more than 380 sites south of the Mason-Dixon Line.

Clinton's new regulations will be added atop a mountain of government-required paperwork that -- contrary to rhetorical claims about the Reagan-Bush years -- had already resumed rapid growth under the Bush administration. In 1991, more pages of regulations were added to the Federal Register than in any year since 1980, which was the all-time high. The number of federal regulatory employees -- 124,994 -- reached a record in 1992. The overhead cost of regulation has surged by more than 30 percent since 1985, to more than $13 billion in 1992.

The cost of obeying regulations is also climbing. Depending on how one estimates costs, Americans pay anywhere from $8,300 to $17,000 per household every year for regulation at the federal, state and local levels, according to a recent study by economist William Laffer. "Regulation is really an indirect tax, a hidden tax" says Laffer, now with the Competitive Enterprise Institute. This invisible tax may be greater than visible federal taxes, which average about $10,000 a year per household.

Costly regulations are harder to combat than costly laws. Suing to overturn a regulation is usually futile, unless the targeted agency violated its own procedures. Even then, proving that the agency overstepped its bounds requires a long and costly trial that is difficult to win. Rather than publicly lobby against onerous regulations, large corporations, interest groups or unions with the resources to fight usually intervene behind the scenes -- either to carve out exemptions for themselves or to make the rules particularly expensive for competitors (smaller businesses and nonunion shops).

But as the number and cost of federal regulations grew dramatically in the 1970s, more and more Americans began looking for a way out. With the help of an evolving legal doctrine and an obscure federal court, many have found an escape hatch -- one that could become a busy passageway during the Clinton presidency

The way out may be found in the U.S. Court of Federal Claims, a judicial body so obscure that Congress had to add the word "Federal" so people would stop calling it to schedule their municipal small claims cases.

If you want to take Uncle Sam to court for money, the Court of Federal Claims is the place to go. Except for some tax cases, the court hears all financial claims against the federal government, be they the result of law, regulation or contract dispute.

Across the street from the White House, the court is housed in a tall brick building towering over a phalanx of row houses. The jurisdiction of the court is much wider than the expansive view from the chief judge's seventh-story window. …