Op-Ed: How We Got Here

Above, Michele Harrington speaking at last year’s 2023 RISMedia Power Broker Forum in Anaheim, California.

Editor’s Note: The historic events taking place in the real estate industry over the last year, including the commission lawsuits, Burnett/Sitzer case, the NAR and real estate brokerage settlements and how the industry will evolve and thrive in the new normal, will be extensively covered at RISMedia’s upcoming CEO & Leadership Exchange in Washington, D.C. on Sept. 4-6. Don’t miss more than 400 industry leaders, 110 panelists and more than 25 educational sessions coming together to share their exclusive insights. Learn more and register here.

Witnessing the abuse of the federal government and the attack on our real estate industry in this past year made me think, “How did we get here?” How did we get to a place where a bureaucracy like the Department of Justice (DOJ) can interfere with a private contract between two individuals or a company and an individual, that they both agreed to, without coercion or force?

So I started doing some research.

Patrick Henry, a founding father and anti-federalist, resisted signing the Constitution for fear that it gave the federal government too much power over private individuals; he and his colleagues feared that this new government would be led by a group of distant, out-of-touch political elites (hmmm). The anti-federalists eventually did sign the Constitution but not until the Bill of Rights was incorporated. The Bill of Rights, consisting of the first ten amendments, was intended to limit the power and authority of the federal government. Henry wanted to give  the majority of power to the states, restricting the ability of the federal government from infringing on the rights of private citizens.

One of the ways this is reflected is the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Basically if it’s not specifically in the constitution it should be left to the states or the people

So where is the DOJ in the constitution? Where in the constitution do law enforcement agencies report to the executive branch? I think Patick Henry would roll over in his grave. Now, I’m not saying the DOJ has not done good things and I’m most definitely pro-law enforcement but realize the growth of government is always under the guise of protecting the people.

Can’t these things be done by the states? By local law enforcement? We have approximately 800,000 local and state sworn law enforcement officers who are more than capable of conducting enforcement actions. Do we need federal law enforcement?

Here is a short list of some of the federal law enforcement agencies:

  1. Federal Bureau of Investigation (FBI)
  2. Drug Enforcement Administration (DEA)
  3. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)
  4. U.S. Secret Service (USSS)
  5. U.S. Marshals Service (USMS)
  6. Immigration and Customs Enforcement (ICE)
  7. Customs and Border Protection (CBP)
  8. Internal Revenue Service-Criminal Investigation (IRS-CI)
  9. U.S. Postal Inspection Service (USPIS)
  10. Department of Homeland Security Investigations (HSI)
  11. U.S. Capitol Police
  12. Federal Air Marshal Service (FAMS)
  13. Diplomatic Security Service (DSS)
  14. National Park Service Law Enforcement Rangers
  15. Environmental Protection Agency Criminal Investigation Division (EPA CID)
  16. Federal Protective Service (FPS)
  17. United States Park Police (USPP)
  18. Fish and Wildlife Service Office of Law Enforcement (FWS OLE)
  19. Alcohol and Tobacco Tax and Trade Bureau (TTB)
  20. Office of Inspector General (OIG) for various federal agencies, each with its own jurisdiction.

This is not by any means a comprehensive list but gives you an idea. I am sure every single one of these agencies were set up with good intentions, to “protect” the people but remember, when you give up liberty for security, you will have neither (Ben Franklin).

So here we are now, the DOJ has targeted the real estate industry, it’s hitting home now because the DOJ started investigating the hideous crime of selling homes. We are now in a position where every ambulance chasing attorney in the US sees this cash cow as a way for them to buy their next G5.

How about the premise of these lawsuits, the Sherman act? Was that constitutional?  Ayn Rand wrote about antitrust, “the penalizing of ability for being ability, the penalizing of success for being success, and the sacrifice of productive genius to the demands of envious mediocrity.” Whether you agree or not with that statement, the act was also set up against companies that were larger than the U.S. government. According to an NAR study on real estate firms, the average firm in the US has three real estate licensees. THREE. Not Standard Oil by any stretch.

So let me further explain how we got here. We got here one law at a time, one federal agency at a time, one compromise at a time, one good intention at a time.  We could have fought this incrementalism at any time, but we didn’t. Most recently, NAR could have fought, should have fought, but again we didn’t, so here we are. Less free, with less liberty, with less of an ability to run our private businesses the way we see fit and lawsuits costing our brokerages billions of dollars forcing some of these smaller companies to shut down or sell.

“Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take everything else!” Patrick Henry

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