Regulation Run Amok—And How to Fight Back
Too many government regulations
today are pointless and prevent us from doing our jobs as well as we could,
writes Charles Murray. His modest proposal: Ignore them.
By Charles Murray in the Wall Street Journal
America is no longer the land of the
free. We are still free in the sense that Norwegians, Germans and Italians are
free. But that’s not what Americans used to mean by freedom.
It was our boast that in America,
unlike in any other country, you could live your life as you saw fit as long as
you accorded the same liberty to everyone else. The “sum of good government,”
as Thomas Jefferson put it in his first inaugural address, was one “which shall restrain men from injuring one
another” and “shall leave them otherwise free to regulate their own pursuits of
industry and improvement.” Americans were to live under a presumption of
freedom.
The federal government remained
remarkably true to that ideal—for white male Americans, at any rate—for the
first 150 years of our history. Then, with FDR’s New Deal and the rise of the
modern regulatory state, our founding principle was subordinated to other
priorities and agendas. What made America unique first blurred, then faded, and
today is almost gone.
We now live under a presumption of
constraint. Put aside all the ways in which city and state governments require
us to march to their drummers and consider just the federal government. The
number of federal crimes you could commit as of 2007 (the last year they were
tallied) was about 4,450, a 50% increase since just 1980. A comparative handful
of those crimes are “malum in se”—bad in themselves. The rest are “malum
prohibitum”—crimes because the government disapproves.
The laws setting out these crimes
are often so complicated that only lawyers, working in teams, know everything
that the law requires. Everyone knows how to obey the laws against robbery. No
individual can know how to “obey” laws such as Sarbanes-Oxley (810 pages), the
Affordable Care Act (1,024 pages) or Dodd-Frank (2,300 pages). We submit to
them.
The laws passed by Congress are just
the beginning. In 2013, the Code of Federal Regulations numbered over 175,000
pages. Only a fraction of those pages involved regulations based on something
spelled out in legislation. Since the early 1940s, Congress has been permitted
by the Supreme Court to tell regulatory agencies to create rules that are
“generally fair and equitable” or “just and reasonable” or that prohibit
“unfair methods of competition” or “excessive profits,” and leave it to the
regulators to make up whatever rules they think serve those lofty goals.
It gets worse. If a regulatory
agency comes after you, forget about juries, proof of guilt beyond a reasonable
doubt, disinterested judges and other rights that are part of due process in
ordinary courts. The “administrative courts” through which the regulatory
agencies impose their will are run by the regulatory agencies themselves, much
as if the police department could make up its own laws and then employ its own
prosecutors, judges and courts of appeals.
I’m not complaining about
regulations that require, say, sturdy structural supports for tunnels in coal
mines. But too often a sensible idea behind a set of regulations—for example,
that exposed stairway floor openings with precipitous drops should have
railings—is made ridiculous by their detail: If said railings are not 42 inches
high, you can be fined, as per OSHA regulation 1910.23(e)(3)(v)(a).
Other regulations could be written
only by bureaucrats with way too much time on their hands, such as ones that
mandate a certain sort of latch for a bakery’s flour bins or the proper way to
describe flower bulbs to customers, or the kind of registration form to be
attached to a toddler’s folding chair, while also prescribing an option for
registering the product through the Internet.
Regulations that waste our time and
money are bad enough. Worse are the regulations that prevent us from doing our
jobs as well as we could—regulations that impede architects from designing the
most functional and beautiful buildings that would fit their clients’ needs,
impede physicians from exercising their best judgment about their patients’
treatment, or impede businesses from identifying the best candidates for job
openings.
It isn’t just people in the private
sector who are prevented from practicing their vocations using their best
judgment. Public-school teachers typically labor under regulatory regimes that
prescribe not only the curriculum but minutely spell out how that curriculum
must be taught—an infantilization of teachers that drives many of the best ones
from the public schools. Workers in government offices are often governed by
such strict job descriptions that chipping in to help out a co-worker or to
take the initiative breaks the rules—and can even get them fired, as in the
case of a Florida lifeguard who rescued a person who was drowning just outside
the lifeguard’s assigned zone.
The broadest problem created by
intricately wrought regulatory mazes is that, in an effort to spell out all the
contingencies, they lose sight of the overall goal and thereby make matters
worse. A particularly chilling example is offered by the 1979 Kemeny Commission’s postmortem on the Three Mile Island partial meltdown, which concluded
that when “regulations become as voluminous and complex as those regulations
now in place, they can serve as a negative factor in nuclear safety.”
I’ve been focusing on regulation in
the workplace, but it isn’t just freedom to practice our vocations that is
being gutted. Whether we are trying to raise our children, be good stewards of
our property, cooperate with our neighbors to solve local problems or practice
our religious faith, the bureaucrats think they know better. And when the
targets of the regulatory state say they’ve had enough, that they will fight it
in court, the bureaucrats can—and do—say to them, “Try that, and we’ll ruin
you.”
That’s the regulatory state as seen
from ground level by the individual citizens who run afoul of it. It looks
completely different when we back off and look at it from a distance. For
example, the Occupational Safety and Health Administration has authority over
more than eight million workplaces. But it can call upon only one inspector for
about every 3,700 of those workplaces. The Environmental Protection Agency has
authority not just over workplaces but over every piece of property in the
nation. It conducted about 18,000 inspections in 2013—a tiny number in
proportion to its mandate.
Seen in this perspective, the
regulatory state is the Wizard of Oz: fearsome when its booming voice is
directed against any single target but, when the curtain is pulled aside,
revealed as impotent to enforce its thousands of rules against widespread
refusal to comply.
And so my modest proposal: Let’s
withhold that compliance through systematic civil disobedience. Not for all
regulations, but for the pointless, stupid and tyrannical ones.
Identifying precisely which
regulations are pointless, stupid or tyrannical will be a lengthy process, but
categories that should come under strict scrutiny include regulations that
prescribe best practice for a craft or profession; restrict access to an
occupation; prohibit owners of property from using it as they wish; prescribe
hiring, firing and working conditions; and prevent people from taking voluntary
risks.
Within each category, the task is to
discriminate between regulations that should command our voluntary compliance
from those that are foolish or worse.
When it comes to professional best
practices, most people still want a government agency to prescribe precise
checklists for, say, maintaining nuclear weapons. But prescribing, for example,
how much time a worker in a nursing home must spend with each resident each
week is stupid. Licensing has a strong rationale when it comes to physicians
and airline pilots. But can’t we rely on the market to deal with incompetent
barbers, interior decorators and manicurists?
Restricting the use of property
makes sense if the proposed use would affect others by polluting air or water
or by creating loud noises. But it should be OK to ignore the EPA when it uses
a nonsensical definition of “wetlands” to forbid you from building a home on a
two-thirds-acre lot sandwiched between other houses and a paved road—a
description of the lot owned by the Sackett family in the famous Supreme Court
case of Sackett v. EPA a few years ago.
Employers should not be free to
ignore regulations that really do involve the exploitation of workers or unsafe
working conditions. But there’s no reason for the government to second-guess
employer and employee choices on issues involving working hours and conditions
that don’t rise to meaningful definitions of “exploitation” or “unsafe.”
The full set of criteria for
designating regulations that are appropriate for systematic civil disobedience
is necessarily complex, but the operational test is this: If the government
prosecutes someone for ignoring a designated regulation even though no harm has
occurred, ordinary citizens who hear about the prosecution will be
overwhelmingly on the side of the defendant.
At the end of the process, we will
have a large number of regulations that meet the criteria for being pointless,
stupid or tyrannical. Let’s just ignore them and go on about our lives as if
they didn’t exist.
The risk in doing so, of course, is
that one of the 70-odd regulatory agencies will find out what you’re doing and
come after you. But there’s a way around that as well: Let’s treat government
as an insurable hazard, like tornadoes.
People don’t build tornado-proof
houses; they buy house insurance. In the case of the regulatory state, let’s
buy insurance that reimburses us for any fine that the government levies and
that automatically triggers a proactive, tenacious legal defense against the
government’s allegation even if—and this is crucial—we are technically guilty.
Why litigate an allegation even if
we are technically guilty? To create a disincentive for overzealous regulators.
The goal is to empower citizens to say, “If you come after me, it’s going to
cost your office a lot of time and trouble, and probably some bad publicity.”
If even one citizen says that, in a case where the violation didn’t harm
anything or anyone, the bureaucrat has to ask, “Do I really want to take this
on?” If it’s the 10th citizen in the past month who says it and the office is
struggling with a backlog of cases, it’s unlikely that the bureaucrat’s
supervisor will even permit him take it on.
I propose two frameworks for
implementing this strategy. The first would be a legal foundation functioning
much as the Legal Services Corporation does for the poor, except that its money
will come from private donors, not the government. It would be an altruistic
endeavor, operating exclusively on behalf of the homeowner or small business
being harassed by the regulators. The foundation would pick up all the legal
costs of the defense and pay the fines when possible.
The other framework would be
occupational defense funds. Let’s take advantage of professional expertise and
pride of vocation to drive standards of best practice. For example, the
American Dental Association could form Dental Shield, with dentists across
America paying a small annual fee. The bargain: Dentists whose practices meet
the ADA’s professional standards will be defended when accused of violating a
regulation that the ADA has deemed to be pointless, stupid or tyrannical. The
same kind of defense fund could be started by truckers, crafts unions,
accountants, physicians, farmers or almost any other occupation.
The regulatory empire will doubtless
try to strike back, asking Congress for more money to hire more inspectors and
lawyers. But it’s going to be a hard sell. The regulatory agencies are becoming
as unpopular as the IRS, and members of Congress know it.
The unpopularity of the regulatory
state also opens up a potential landmark change in jurisprudence. Federal courts
are already empowered to overturn agency actions that are “arbitrary,”
“capricious” or “an abuse of discretion,” but the Supreme Court has set the bar
so high that the regulatory agency almost always wins if it followed
bureaucratic procedure in creating the regulation.
The good news is that the Supreme
Court has a history of responding to an emerging social consensus. A drumbeat
of well-publicized cases in which the agencies have obviously acted arbitrarily
and capriciously as those words are ordinarily used could lead the courts to
adopt a more straightforward interpretation of them. That’s all it would
take—not new legislation, not a sympathetic president, just the willingness of
the Supreme Court to say that “arbitrary” and “capricious” can apply to the
enforcement of regulations, not just their creation.
Neither the defense funds nor the
Supreme Court can deter regulators from writing bad regulations. That would
require Congress to stop writing vague laws with good intentions—an impossible
dream. But we can hope to introduce common sense into the enforcement of
regulations.
The changes I envision can compel
regulators to confront the same reality that state troopers on America’s
interstate highways face every day. If you are driving 8 miles over the speed
limit on a deserted stretch of interstate, you might get pulled over by a state
trooper who is bored or needs to fill his quota of tickets. That’s the
situation we as individuals face when we commit a harmless violation of a
government regulation. We are an isolated target.
Figuratively, the purpose of the
defense funds is to get us off the isolated stretch of highway and onto an
interstate where the flow of traffic is several miles above the stated speed
limit. Faced with many people who are technically breaking the law but who are
actually driving safely, state troopers stop only those people who are driving
significantly faster than the flow of traffic or driving erratically. The
troopers are forced by circumstances into limiting enforcement of the law to
drivers who are endangering their fellow citizens.
In sports, this enforcement
philosophy is called “no harm, no foul.” If a violation of a rule has occurred
but it has no effect on the action of the game, the officials ignore it and the
game goes on, to the greater enjoyment of both players and spectators. As the
sports announcers say, “The officials are letting them play tonight.”
The measures I propose won’t get the
regulations off the books, nor will they improve the content of those regulations,
but they will push the regulatory agencies, kicking and screaming, toward a “no
harm, no foul” regime. They will be forced to let the American people play.
This essay is adapted from Mr.
Murray’s new book, “By the People: Rebuilding Liberty Without Permission,”
which will be published May 12 by Crown Forum. He is the W.H. Brady Scholar at
the American Enterprise Institute.
What
follows is an interesting letter and discussion: http://thefederalist.com/2014/04/15/donald-rumsfelds-tax-day-letter-to-the-irs-is-amazing/
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