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Stopping Business and Due Process

Stopping Business and Due Process

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March 28, 2014


Imagine if when prosecutors accused a person of a capital crime, the government stopped his heart and said: We’ll let your friends try CPR if you win at trial.

That bears a striking resemblance to the kind of due process some businesses get. Recently, Reason and the editorial page of the Wall Street Journal called attention to two examples.

Let’s start with some blueberry growers in Oregon. According to a Journal editorial , the Department of Labor, showed up, looked at their books, substituted their own notions of worker productivity for the records the companies kept, and concluded that the growers were paying less than minimum wage. So the bureaucrats decreed that their blueberries couldn’t be shipped across state lines unless the growers paid the back wages they allegedly owed and waived their right to appeal.

In other words, before the question of whether the growers had violated the law was ever litigated, a core aspect of their business—selling their product—was stopped. Like a person’s life, a business’s existence is a process of action: stop it and the business starts dying. To get their business moving again, and to get millions of dollars’ worth of their crop to market before it rotted with their investment, the businesses had to comply with the bureaucrats’ demands.

According to an agricultural newspaper, the Department of Labor says that was OK : It had the legal right to do what it did, and you can’t place someone under economic duress by doing what you have the legal right to do. So it claims the waiver counts.

In a way, though, the blueberry growers were lucky. The bureaucrats’ demands were costly but relatively simple; the growers were able to comply, and when they did, the bureaucrats let them get back to business.

As Reason tells it, some small bus companies haven’t been that lucky with the Department of Transportation. The legal procedures that apply aren’t made clear either by Reason or, so far as I can tell, by the Federal Motor Carrier Safety Administration’s website . But the companies have ended up making their arguments after being forced off the road—which means racking up costs while being cut off from revenue. Even if the government was in the wrong by its own standards, and even if the companies have the evidence to prove it, they may run out of assets and die before they can prove their innocence.

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