From William Shakespeare’s play Henry VI, Part 2, Act IV, Scene 2.

Many business leaders feel those words are as true today as when Shakespeare wrote them over 400 years ago.

Full disclosure. I graduated from a first-class law school in Boston, practiced law for ten years, and was proud of my profession and my service to clients.

Then, I became the CEO of one of my clients. I quickly developed a different view of lawyers, which wasn’t pretty.

Not long into my tenure as the CEO, I faced multiple legal hassles from lawyers for the professional union representing the office employees and at the Port of Milwaukee—a similar experience with the Longshoreman’s union. My company was threatened with a class-action lawsuit and the usual discrimination claims and regulatory hassles that are so common today.

Chances are that if you’re facing some administrative requirement hamstringing your business, another company or individual is suing you or your company, or even your employees are creating legal problems for you; you can thank the lawyers of America.

It’s not our imagination. America has more lawyers per capita than any country in the world, putting us at a competitive disadvantage.

This has become such a serious problem that it has made its way all the way to the United States Supreme Court, which will soon issue a decision that may make our lives a lot simpler.

A group of herring fishermen from New Jersey have appealed the decision of the National Maritime Fisheries Service to require them to hand 20% of the profits to the government to pay for monitors that must accompany them on all fishing trips to observe catches. In other words, the fishermen had to pay for the police who were watching them.

The federal regulations regulating commercial fishing do not require them to do that, so they sued the National Marine Fisheries Service for exceeding its authority.

Historically, they would be doomed because of the United States Supreme Court ruling famously called the Chevron decision. The Supreme Court held that when there’s an ambiguity in the law about the federal agency’s authority to promulgate rules, courts must defer to the federal agency. That’s why we have a living nightmare today, as 99% of the time, courts will defer to the federal agency, otherwise known as the “administrative state.”

So, what can you do to combat this reality that is a plague on your business?

While I describe myself as a “recovering lawyer,” I am sharing my thoughts as a business leader on combating the administrative state.

1. Adopt a simple ethical rule for your company: “If you don’t want to read about it in the media, don’t do it.” You can ignore employee handbooks and lengthy memorandums and simply ask employees to follow this rule, and you will not be faced with discrimination lawsuits or quality defect problems, which we read about so often in the newspapers.

2. You can employ the Elon Musk strategy. Meet with the regulators and challenge them to explain why they insist on the rules when there’s no rational basis for the requirement. Sometimes, as Elon has proven, they will actually back down.

3. You can fight fire with fire by hiring your own lawyer. One case I took in law practice was from a Montessori School in Milwaukee, Wisconsin. The state regulations were literally preventing it from functioning. We lost at the trial level, but the Wisconsin Supreme Court upheld our position on appeal, so the school got to function. It was worth the investment.

4. Count the days until the Supreme Court decides on the fishermen’s case this June. You can take this to the bank: I predict it will reverse the Chevron decision, eliminate the bias in favor of the federal agency, and force it to justify how it can do a regulation not covered by the statutory language of Congress. That, in turn, will influence state administrative regulations as well.

Dan Steininger
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