Theft at the Public Till
decides it needs land to preserve the greater needs of the community, it should acquire it justly: by paying for it.” The theory the Corps uses - “we can get by contract and regulatory denials, what we can’t get from Congress” - is used by other government agencies as well. By brute force (and by virtue of a little known law entitled the Administrative Procedures Act) regulators impose their version on the common good on unsuspecting private citizens. It is unchecked power. With wetlands, as with Superfund and other supposedly environmental threats, the government uses its power to coerce to force what it claims is the “greater good.” The effort to create an unfettered source of government power at root rests on an apparent position that private parties are entitled to contract for good reason, bad reason, or no reason at all. It then exaggerates the scope of freedom of contract in private transactions, and imputes the same level of freedom to a government whose power must always be questioned: what lawyers refer to as “the takings risk that results from its power of taxation and the bargaining risk that results from its monopoly position in all areas of life.” A government that can tax, and hence take, at will should never be totally free in choosing the parties with whom it contracts and to whom it makes grants. And a government that has any level of monopoly power can- not be trusted to impose whatever conditions it wants on these same parties. The conventional wisdom has it that government is subject to extensive lim- itation when it regulates and none when it contracts. But the conventional wisdom contains only a tiny portion of the truth, for it ignores the need to limit government in all its activities. Government and statecraft are always a high-risk enterprise, and bargaining by the state has to be watched as closely, and with the same level of concern and suspicion, as taking, regulation, and taxation -- the traditional forms of government power. The concept extends to what are known as “indirect’ federal mandates -- regulations that withhold funds unless a state or locality does something which the federal government desires it to do. Not that the withheld funds and the directive need be related -- it seems to be considered appropriate to withhold any form of revenue sharing. Where the federal government uses tax revenues to control the power of the states, it substitutes its monopoly
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