Taming the Administrative State

I toiled for 25 years in what I considered service to my fellow citizen working for the Federal government. I finally retired, in part, because of the conflict between what is, and what is supposed to be. Ayn Rand said:

The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.

There are, you see, too many laws. The days when a citizen could know the law, and therefore be able to stay within its boundaries, has long vanished. Today, there are arcane "laws" on the books over which you, or I might stumble at any time, that we know nothing about, and more importantly, would not reasonably know to ask about. Many are arbitrary, or are arbitrarily enforced. So, while knowing the law, and believing yourself to be within it, one can find oneself being hit with fines and other penalties for noncompliance.  Others "laws"  clearly are Unconstitutional, yet have been "interpreted" by the courts to be Constitutional. Such are the wetlands laws, and the Endangered Species Act, which claim to be able to take your property, while granting you the priviledge of continuing to pay taxes on the property, all  wihout compensating you for it.  Another example is the recent Seattle case of the BATFE confiscating some airguns because they claimed these could easily be turned into "machine guns."  Really?

The problem of too many laws, arbitrarily enforced, and at the same time refusal to enforce others, is the subject of a post at Eternity Road by Francis W. Porretto entitled Horsemen Part 2: A New Political Alignment. In explaining the new political alignment, Poretto introduces us to a new, seemingly oxymoronic term, anarcho-tyranny:

Yet the functional characteristics of both anarchy and tyranny are easily seen in our current state of society. Government by law, the American conception of governmental legitimacy, has vanished because of the proliferation of millions of obscure, unenforceable, and mutually contradictory laws. The exercise of arbitrary power without regard for the rights of the citizen is rampant; denial of the right to bear arms, no-knock drug raids, "asset forfeiture," "civil penalties," and warrantless searches and wiretaps are merely flagrant examples. All that's missing is consideration of the dynamics that have brought those conditions about -- conditions any sane man would condemn utterly and, if adequately equipped, would surely resist -- and which are propelling the new alignments of the present day.

We balk at the writing of National Security Letters by FBI agents, yammering on about how this is a grotesque violation of the Constitution-and it is. But at this stage of the Administrative State, do they really need a law? Couldn't the FBI simply write a rule, getting a Federal Judge to agree on its necessity as cover? Except for budgeting for the agencies swarming among us and eating our profits, is Congress even necessary anymore? I often wonder if the kabuki theatre of elective politics isn't merely to take the audience's eye off the other hand:

In considering these matters, electoral politics -- the pursuit of elective office and the behavior of those who've attained it -- is where the eye tends to focus. Certainly that's the center of most media attention. Yet there are other routes toward power over others that don't require complex and expensive campaigns or a protracted trawling for votes. Those are the avenues that have been, and are being, most successfully pursued by the would-be tyrants of our day. They've done some of the worst damage to the concept of government by law.

What a person does who lives under such a State is to avoid anything that marks him out as deserving suspicion, while quietly pursuing one's own interests. In a sea of green dots, one doesn't want to be the red dot:

The growing reaction, amid growing consciousness of the power and lack of constraint on the regulatory state, by ordinary Americans is quiet, stubborn personal resistance. As a citizen becomes aware of particular regulatory threats to his personal position, he tends to react, not by assuring compliance, but by armoring against it. This is particularly visible in regard to "endangered species" regulations and "wetlands" regulations. Many a landowner who finds a specimen of an "endangered species" on his land will adopt the 3-S treatment for such creatures. After all, if a federal agent were to encounter that wolf or spotted owl, the landowner's whole parcel could be declared "protected habitat," and therefore barred to human use in perpetuity. Similarly, a landowner who discovers that a segment of his parcel would technically qualify as a "wetland," another category of property barred to human exploitation, is more likely to have it quietly dried out and filled in than to report his discovery to the local authorities.

Go read the whole post. As usual, Mr. Porretto includes a wealth of data that I have glossed over, and just says it more elegantly than I can. Porretto doesn't get into what to do about the overgrown and out of control Administrative State, but I have a few ideas.

One thing the presumably conservative Congress needs to do is revise the way regulations are made. Congress needs to bring such activities back under its fold. All proposed regulations should be staffed through the respective committees, then voted on by both houses of Congress, as if it were a law, before it could be implemented. All existing regulations should be immediately placed on hold pending a review by an oversight committee, that would be required to receive testimony from citizens on the effects the regulation has had, good and bad.  To those critics who argue that this would slow down the process to a crawl, I would ask them to go back and read the forgoing. It's a feature, not a bug.