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Regulatory Costs and the Loss of Liberty

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 one element of A Brief Outline of Undisclosed Costs of Regulation.

From classical liberal and individual rights perspectives, the administrative state is an affront to liberty almost by definition.

Loss of liberty, as a category of costs, is not something emphasized in traditional regulatory assessments guidance for agencies (such as in executive orders on regulatory review and directives such as Office of Management and Budget’s Circular A-4). If such costs were recognized, the administrative state would not have been established; it was and remains concerned almost purely with implementing rule by purported experts.

The loss of liberty caused by administrative state coercion, whether expressed as assaults upon individual rights and federalism or the loss of choice and opportunities, goes well beyond regulatory process deficiencies or the economic costs and wrongheaded philosophies of benefits.

Regulatory Impact Analyses (RIAs) are not simply ill-equipped for portraying the regulation of human being’s lives as cost; they are unconcerned with such a task. The principle of not initiating force against one’s fellow citizen, in terms of programs operationalized and even in terms of governance itself, does not cause anxiety for unelected experts.  

Therefore as a higher-level cost, different sorts of political leaders have emerged under the mixed, socialized, administrative state than would under a safeguarded and safeguarding republic. This is illustrated prominently now by the seriousness with which the Green New Deal, which would “restructure the entire basis of the American economy,” is regarded. Congress would be handing the keys over for tomorrow’s administrators to do whatever they like.  

Debates over the legitimate executive and administrative power are vastly older than the country itself. Columbia Law Professor Philip Hamburger, in Is Administrative Law Unlawful? portrays the modern Administration State as a reemergence of the absolute power practiced by pre-modern kings. In Imprimis, Hamburger described the return of monarchical prerogative as the very condition the Constitution was drafted to eliminate:  

[T]he United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. ... The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident.

At a time when life was profoundly complicated and perilous compared to today—no electricity, no indoor plumbing, no fast food nor cornucopian grocery stores—there were only four cabinet agencies. As Larry Arnn of Hillsdale College put it:

Education was a thing to behold in the United States long before there was a Department. Likewise people had houses before we had a Department of Housing and Urban Development; they traveled before we had a Department of Transportation; they traded before we had a Department of Commerce. … A federal government with four cabinet officers would be a federal government doing what it has to do.

The cost of the federal administrative state, culminating now in modern proposals for guaranteed worthless makework jobs, is in large part the cost of 20th century Progressivism and New Deal success at the coercive societal reorganization and overthrow of separation of powers in service of petty regulation of individual lives. For what aspect of life is off-limits for today’s federal government?

Not health care, schooling, retirement, finances, housing, energy, work life, wages, infrastructure, R&D, the Internet. Not even gas cans or e-cigarette/vaping paraphernalia, energy standards for residential dishwashers, whether or not to use ethanol, where the opening on one’s washing machine appears. Americans endure nude body scans in airport security theater. It is insufficient that others are not harmed by one’s activity; liberty must yield and administrators must decide.

This virtual stamping out of limited government has cleared the way for the democratic socialist platform making headlines, with media-championing and softball-questioning of legislators espousing it. Tomorrow’s centralized programs of government guaranteed jobs, housing, Medicare for all, and paid work leave have been made possible—and likely—by the replacement of a constitutional republic with the Administrative state.

The administrative state and the outrageous policies it has brought within a stone’s throw of implementation have nothing in common with the colonial era and Framers’ “silken bands of mild government.” They are mutually exclusive with the United States’ traditional form of government.

Administrative state depredations and power grabbing might be thought of, as Hamburger put it, the “civil liberties issue of our time.”

Next this series will take a brief look at “takings” of private property as a cost of regulation.