Intrusive Government Is Often Punitive

By Larry Huss,

Since the day I entered law school back in 1966 it has been impressed upon me that the powers of government, at any level, are limited. In short the purpose of government action must be in furtherance of a legitimate government purpose – most generally to protect the health and welfare of its citizens – and that the exercise of the power must be in pursuit of those purposes in the least intrusive manner as possible to effect that legitimate government purpose.* It is that latter “requirement” that tends to be ignored as government grows and intrudes upon our lives.

The Legal Information Institute of Cornell Law School describes it thusly:

Police powers are the fundamental ability of a government to enact laws to coerce its citizenry for the public good, although the term eludes an exact definition. The term does not directly relate to the common connotation of police as officers charged with maintaining public order, but rather to broad governmental regulatory power Berman v. Parker, a 1954 U.S. Supreme Court case, stated that ‘[p]ublic safety, public health, morality, peace and quiet, law and order. . . are some of the more conspicuous examples of the traditional application of the police power’; while recognizing that ‘[a]n attempt to define [police power’s] reach or trace its outer limits is fruitless.’”

The reason that the exercise of the power be in the least intrusive manner is that the very nature of the power intrudes upon our individual constitutional rights guaranteed under the Bill of Rights. And yet, despite the intent of the framers of the Constitution, we find that many exercises of the “police powers” are so broad that it burdens the innocent unnecessarily.

A good example is the treatment of Sudafed – an over-the-counter decongestant containing pseudoephedrine hydrochloride which had previously been recognized by the Food and Drug Administration as being an effective decongestant. However, when it was discovered that Sudafed was being used to manufacture the street drug  methamphetamine (meth) it was within the government’s power to restrict the availability of a legal drug for illegal purposes. In most instances – and in the least intrusive manner – most states required that retail sellers of Sudafed maintain information available to law enforcement relating to the volume and frequency of purchase by individuals. Large amounts purchased in proximity of time usually related to the use of Sudafed to make meth. That was a reasonable exercise of the power. However, in Oregon the governor and the legislature went a step too far. It required that you have a doctor’s prescription for Sudafed available only through a registered pharmacy. Thus a $200 visit to the doctor to secure a $10 bottle of Sudafed. An unreasonable intrusion by any stretch of the imagination. (Eventually, Oregon government was forced to change that requirement.)

But that’s not the only time that Oregon government has acted radically to resolve an every day problem. For instance, Oregon – along with New Jersey – were the only two states that prohibited “self-service” gasoline. In the beginning it’s entirely possible that there was a “safety” reason for such laws but I doubt it. As a sixteen year old I worked in a full service gas station in Eastern Montana. My training consisted primarily of the following admonition – don’t let the tank overflow or you’ll be responsible for the wasted gas and the clean up. With the advent of safety equipment, including the automatic shut off feature for pumps those “safety reasons” went away. But Oregon government resisted. It was unclear from the legislation in Oregon as to the purpose for such a prohibition – some said it was for safety reasons (fear that “a little old lady” would self-emollate) others defended it as a “full employment” initiative – both were absurd and resentment toward the prohibition continued to grow. But Oregon government doesn’t like to be told what to do by its electors. So when the Oregon legislature finally got around to permitting “self service” it threw a nasty hook in to ensure that there would be a little “take” on its implementation. In most states that allow self-service there is a pricing differential between self-service and full service to reflect the cost of an attendant(s), but the Oregon legislature prohibited any pricing differential thus ensuring that Oregonians would not get the benefit of self service and would continue to use full service. When all is said and done, the Oregon politicians can say – with somewhat of a straight face – that Oregonians didn’t really want self service. What a crew but these are the people you elected.

But Oregon is not unique in having its governing class punish those who dare to resist. Of late we have watched the administration of President Joe Biden begin a systematic attack on the use of natural gas in home – for cooking, heating and hot water. There is no proof that banning the use of natural gas appliances will have any measurable effect on “greenhouse gases” and the supposed “safety” concern regarding particles produced by cooking with a natural gas stove turned out to be overblown – more an annoyance than a health hazard. This effort by Mr. Biden is more about punishing people for not buying into the whole “green initiative” than it is about a legitimate concern about pollution and/or health. Just a couple notes regarding this – between Mr. Biden flying off to vacation and his “climate czar” traveling the world in a private jet – they produce more “green house” gases than do the gas appliances now at risk.

More importantly, in a previous column I noted that the forest fires each summer caused in large part by the government refusing to allow the “cleaning” of the forests with selective cutting far exceeds annually the amount of “greenhouse gases” saved by government initiative on an annual basis. In other words, dealing proactively with mitigating the effects of wildfires would remove more greenhouse gases annually than all of the baloney espoused by government bureaucrats and politicians. But if you did that the environmental lobby would be up in arms and so would its allies in the main street media – donation and volunteer campaign workers would disappear that’s what important to the politicians. And similarly, if you did clean the forests you wouldn’t have any reason to make people suffer for their disagreeing with your political agenda.

But I digress.

There are a series of cases making there way through the court system that will wind up before the United States Supreme Court where there is great hope that the court will re-balance the tension between “legitimate government purposes” and “the least intrusive methods of implementation.” Let’s hope that the court leans toward individual rights and imposes stricter guidance on implementation.


*Regardless of progressives and their allies in the mainstream media, what defines a conservative is not that they are racists, homophobes, misogynists, xenophobes, rather they are ones who believe in limiting government to its legitimate purposes implemented in its least intrusive manner.