The problem with this is that it fails to recognize the sanctity of individual retained rights in the United States. For instance, consistent with formative legal traditions expressed in Supreme Court cases, individuals are protected from unrestrained regulation to achieve any public goal advanced under the rhubric “public benefit.” Sunstein does not recognize the primacy of these protections. It appears that as far as he is concerned, legal theories of free regulation based on achieving a perceived public benefit have no restraint. Sunstein would only apply a cost/benefit analysis to the regulation.
(1) Regulation must be for a “legitimate public purpose. “ It must have a legitimate substantial relationship to the protection of public peace, health, safety and morals from substantial noxious, dangerous or injurious use.
(2) Permits are essentially conditional permission to engage in an activity that could otherwise be absolutely prohibited as injurious. The permit conditions must have a relationship to avoiding, minimizing or mitigating the injury the activity would cause. (“essential nexus.”)
(3) The conditions imposed must be “roughly proportional” to the harm imposed.
(4) Regulation to promote the public interest rather than prevent injury to the general public is likely to create a compensable property takings protected by the Fifth Amendment of the Constitution of the United States. One exception to this is a business that is a monopoly or constitutes a public franchise, such as a public carrier (railroad) or a utility. The state may regulate public franchises in all matters affecting their relationship with the public.
(5) Regulation must serve the interests of the general public and not some single or particular class of interests. They must not unfairly discriminate against a class of interests.
(6) Enforcement of regulations is governed by rules of “proximate cause.” There must be substantial forseeability or predictability that specific actions would cause injury or harm within an uninterrupted period of time. The actions must be voluntary. There is also the quality of direct causation – that there is no intervening cause between the original act and resultant injury. The action must be the primary act from which the injury results and without which the injury would not have occurred.
(7) The injury caused must be substantial – significant or appreciable.
(8) The legislature cannot make a regulatory permit for private businesses that are not public franchises conditional upon relinquishment of a constitutionally protected right – such as due process, compensation for property takings, etc.
(9) Regulation must be reasonably necessary and not unduly oppressive upon individuals. It cannot pose an unwarranted interference with the constitutional rights of individuals to carry on a lawful business, to make contracts, or to use and enjoy property. It cannot interfere with the constitutional right of the citizen to pursue any trade, business, or vocation which in itself is recognized as innocent and useful to the community. The Legislature can not, under the guise of police regulations, enact laws not pertaining to the public welfare, public health, or public morals in which impose onerous and unnecessary burdens upon or arbitrarily interfere with business and property.
bump