Law is whatever is boldly asserted and plausibly maintained.
This post is part of a series on “Rule of Flaw and the Costs of Coercion: Charting Undisclosed Burdens of the Administrative State,” and comprises an element of A Brief Outline of Undisclosed Costs of Regulation.
Corrupt government and authoritarianism have been the historical rule rather than the exception.
The U.S. Constitution’s elevation of individual rights and restraints on governmental power in particular represented the peak of the exception. As Jefferson put it in “Notes on Virginia”:
Civil government being the sole object of forming societies, its administration must be conducted by common consent. Every species of government has its specific principles. Ours perhaps are more peculiar than those of any other in the universe. It is a composition of the freest principles of the English constitution, with others derived from natural right and natural reason. To these nothing can be more opposed than the maxims of absolute monarchies.
Sliding back toward the authoritative norm and monarchical “maxims,” today’s administrative state has eroded rule of law principles like separation of powers, checks and balances, powers, property rights, and non-interference with the peaceable, topics covered elsewhere and by countless others.
Interestingly, reckoned costs of the vast administrative/regulatory state neglect costs of the loss of liberty. Even the 2019 Economic Report of the President, likely the most comprehensive assessment of and philosophical reflection on the regulatory state in decades, avoids those weeds and focuses on more formulaic evaluations like the economic costs of government regulation and costs to business.
Yet all enterprises are composed of individuals. The deterioration of liberties ranks among the most important and elemental yet neglected “meta-costs” of the regulatory state. Suppressed individual liberties and exposure to, rather than protection from, arbitrary government force could be considered the highest and simultaneously most disregarded in the hierarchy of the “social costs” and justice that ostensibly preoccupy the champions of administration.
The administrative state has blasted clear a path for more absolute forms of power, which would peak in such societal takeovers as the Green New Deal. These are not being aggressively blocked, apart from reforms proffered inside a sandbox on the administrative state’s own vast beach. The constitutionality of administrative law judges has been called into question, for example. But on the other hand, the assertion of agency expertise remains largely unchallenged. The unelected-rulemaker-as-judge, evading procedural rights and dispensing with due process and jury, prevails.
The violation of due process so prominent today has been called “criminalization without representation” by Manhattan Institute researchers, who write that “[o]f the more than 300,000 criminally enforceable federal rules and regulations, only about 5,000 [less than two percent] can be found in statutes voted on and passed by Congress; the rest were created by unelected bureaucrats.” On this theme, see also Harvey Silverglate’s book “Three Felonies A Day: How the Feds Target the Innocent.”
Legal scholar Ronald Cass has described how “practical and doctrinal changes have significantly reduced the degree to which criminal punishment fits rule-of-law ideals.” Cass explains that, “Although far from the only cause, the expansion of criminal sanctions is a by-product of an extraordinary explosion in administrative rulemaking that is backed by criminal liability.”
U.S. Circuit Judge J. Harvie Wilkinson III summed up the resultant tension: “The organic legislation often permits but in no way requires regulators to direct in minute detail the lives of those they regulate. In the name of precision, however, the regulators often steal the last ounce of residual discretion from the regulated person or enterprise. The stifling detail seems almost designed to show America beyond the Beltway just who’s boss.”
Perhaps further illustrative, the number of “restrictions” (words like “shall” or “must”) contained in the Code of Federal Regulations now exceeds a million, up from around 400,000 in 1970. Other examples of ambitious criminalization exist. At both the state and federal levels, civil asset forfeiture, with “equitable sharing” between state and federal governments, has grown as a concern. The Competitive Enterprise Institute’s Iain Murray summed up the modern decay:
[An] American will find himself dragged through a punishing series of encounters in administrative courts and tribunals long before he ever gets a chance to present his case in the courts established by Article III of the Constitution. When he finally gets there he will discover that under judicial doctrines of deference, the courts are likely to side with the agency he has struggled with for so long.
As the Hoover Institution’s John Cochrane put it, an early 20th century American could oppose Herbert Hoover and still run a business, but wonders about the modern era: “[If you cross] regulatory agencies, now powers unto themselves, or speak out against the leaders of those agencies, can you do so? If you support candidates with unpopular positions, can you still get the regulatory approvals you need? It’s not so clear. That is our danger.”
Cochrane lists, in his white paper on “Rule of Law in the Administrative State,” the following criteria for judging fairness or adherence to rule of law:
- Rule vs. Discretion?
- Simple/precise or vague/complex?
- Knowable rules vs. ex-post prosecutions?
- Permission or rule book?
- Plain text or fixers? ([A]re specialists with internal agency contacts necessary, or specialists who used to work at the agency?)
- Enforced commonly or arbitrarily?
- Right to discovery and challenge decisions
- Right to appeal
- Insulation from political process
- Speed vs. delay
- Consultation, consent of the governed
It’s a start. A broader perspective on the burdens and insults of the administrative state is essential.