The following is by Bruce Abramson, an advisor to The American Coalition. See more of Bruce’s writings at his Substack.
How to Drain the Swamp: Gutting & Rebuilding America’s Public Sector Institutions
Hint: It requires a lot of grunt work. Institutional rehabilitation is infrastructure! And Fixing Infrastructure is as important as it is boring.
Picking Up Where We Left Off
Last week I wrote about the crisis stemming from America’s institutional rot. To put the matter succinctly, the complexities of modern life require us to trust institutions and the experts they elevate. Yet none of our institutions, and few of their leading experts, are trustworthy. They’re demonstrably self-serving and possessed of values that few outside their ranks share.
I also noted that untrustworthy institutions cannot sustain either a free society or a constitutional republic—and that in fact, the U.S. has functioned as neither since March 2020. That failure will soon lang us in one of three places:
If the corrupt institutions consolidate their power, the U.S. will become a totalitarian society.
If the American people rise to overthrow the corrupt institutions, we will experience a period of rebellion and war.
If level heads prevail, we will gut and rebuild our institutions before either of those first two dismal possibilities become entrenched. That work will have to begin in earnest following the 2022 midterm elections, pick up steam after the 2024 Presidential race, and likely transform the American institutional terrain within a decade.
Those themes hardly broke new ground, but I’m eager to propose solutions rather than simply decry problems. So last week’s essay also promised a follow-up piece outlining a “gut and rebuild” strategy. That promise may have been overly optimistic; it will probably require at least two essays covering the public and private sector institutional overhauls, respectively. Maybe more. Today’s entry focuses on the public sector—or as it is more accurately known these days, the Deep State.
In approaching this critical topic, it’s best to begin with what I like to call the MEGO Principle (My Eyes Glaze Over). When it comes to institutional restructuring, each step is at least as important as it is dull. The material is mind-numbingly boring. And therein lies its power.
Leftist radicals are notoriously dull and humorless. They love getting bogged down in nuance and detail. They live to write rules that no one can understand, deploy them to their own advantage, grant themselves generous exemptions, and make life miserable for those who seek nothing more than to live their own lives.
The few radicals who manage to excel at these tasks without becoming outwardly sour and bitter—Saul Alinsky and Barack Obama come immediately to mind—become important public figures. Most of the others work deep in the background laboring hard to change society’s written and unwritten rules.
Few people other than radical leftists have much interest in such arcana. They focus their attention on more rewarding pursuits, leaving rulemaking—the very wiring of modern society—to those most eager to undermine the pursuits that most people find rewarding.
The only way to beat them is to dive into their world.
Try to stay awake.
It’s the only way to avoid drowning.
A Little Help from the Top
The 2021/22 Court year included more than the usual number of such cases. Towards the end of its session, the Court released a major opinion on Second Amendment rights and overturned Roe v. Wade. Neither of those, however, were the Court’s chosen finale. That position belonged to West Virginia vs. EPA, a decision stating that the EPA had overstepped the authority that Congress had granted it.
Quick recap: Guns and abortion are exciting topics about which millions of Americans are deeply passionate. Administrative law is not. Administrative law is dull. Normal citizens don’t much care about administrative law. Sure, they may care about a particular policy that some regulatory agency was trying to push, and the very loud Washington activist often try to confuse the issue, but at the end of the day the average American reacts to administrative law rulings with MEGO.
That’s a tipoff that administrative law is crucial. What is it? Administrative law is the body of law that governs the relationship among legislatures (i.e., Congress), administrative agencies (both those in the Executive Branch and those that are described as “independent”), and the courts. The primary sources of administrative law at the federal level are the Administrative Procedures Act (APA) and a body of Supreme Court rulings.
APA Reform, Now!
It’s hard to think of a rallying cry with less sex appeal than “APA Reform, Now!” Which, again, is a tipoff that few rallying cries could be more important.
As things stand, the balance is way off. West Virginia was a step in the right direction, but it was just one small step. We need to rethink the entire bargain.
Under current law and practice, Congress passes vague, complex, incomprehensible laws directing an agency to do something. The agency then applies a great deal of discretion interpreting those instructions and deciding how it would like to implement them. It solicits feedback from “the public” in a manner that is almost impossible to navigate without a sizable legal budget, a team of specialist lawyers, and some lobbyists. Then the agency issues a final rule that gets encoded in the enormous (and growing) Code of Federal Regulations (C.F.R.) and becomes law.
Every now and then the political winds change and an agency “discovers” that Congress long ago handed it the authority it needs to conform its regulations to controversial policies aligned with the preference of the sitting President. That was precisely the situation at issue in West Virginia, where the Obama-era EPA discovered that Congress had long ago granted it the authority to reconfigure America’s power plants to address climate change in precisely the manner that President Obama—and now President Biden—believe it should be addressed. The Supreme Court noted that when Congress decides to restructure an entire sector of the American economy, it really does owe us the favor of doing so clearly and unequivocally.
That’s hardly the only problem with administrative law (or any of our laws), however. Very little—if any—attention is ever paid to whether the people whose behavior the new law governs can understand the law. Those with appropriate budgets, of course, can hire sizable and expensive compliance teams. Normal people or small businesses who just want to function normally are typically out of luck. Not only must they comply with new laws they can’t afford to understand, but their failure to hire compliance professionals suggests that they don’t even care about complying!
If anyone that the law ensnares chooses to complain, they face a limited set of options. They can try to convince the agency that it made a mistake. Most agencies employ “Administrative Law Judges,” whose job for the agency is to determine whether or not the other parts of the (same) agency made a mistake. Sometimes their decisions are final; sometimes other parts of the (same) agency get to review them.
If that front-line procedure proves unsatisfying, there are always the federal courts. Folks who lose in the agency must convince a federal judge that the agency made one of three mistakes: Either it (i) overstepped the authority Congress handed it and is thus trying to enforce an illegitimate rule; (ii) violated some technical rule of rulemaking and is thus trying to enforce a rule that never really should have made its way into law; or (iii) misinterpreted its own rule as applied to a specific case.
The complaining party must, however, make that case with one hand tied behind its back. The Supreme Court has told all federal judges to presume that the experts working inside an agency understand both the instructions Congress handed them and the industries they’re charged with regulating. The burden of proof rests entirely with the party trying to overturn the rule.
Not surprisingly, this framework has led to extremely powerful regulatory agencies that do whatever they damn please. They come to believe that they own the space they’re supposed to regulate, and that their job is to deliver what they—in their superior understanding—know that the future demands. They have little regard for those—whether citizens, members of Congress, or corporations they oversee—who do not share their level of understanding or passion for the common good.
Agencies attract, hire, and promote talent that shares those beliefs. A handful of large, powerful companies come to appreciate the beauty of leveraging an allegedly mission-oriented government agency to serve their own purposes. They fete agency employees and operate a revolving door. They work with the agencies to make both the agency and the biggest companies it regulates look good. Corporations understand that high compliance costs are an excellent, legal, and seemingly positive way of squelching new competition, innovation, and the entry of small businesses into their space. In the parlance of Industrial Organization, compliance costs qualify as “barriers to entry.” Many barriers to entry are illegal under the antitrust laws. Compliance costs provide a fully legal way to limit new competitive entry.
On occasion, of course, these big players get into fights both among themselves and with the regulatory agency. Such fights typically emerge when something happens to shift the balance of power within the industry. Nearly all of them settle as soon as the new balance becomes evident.
The net result is a symbiosis between a politically oriented regulatory agency and a handful of large incumbents who dominate the industry it regulates. The myth of “business” standing against “government” is becoming less tenable by the year. In point of fact, big business and big government have always been allies in the battle of big v. small. The tension between them is the normal tension between allies trying to divvy up the spoils of their victory.
Needless to say, this system works very well for political activists, career bureaucrats, and big incumbent corporations—all members of America’s elite and key contributors to our pervasive institutional rot. It works horribly for everyone else.
Fixing the System in Four Easy Steps
MEGO long ago? Or are you still there? Because administrative law reform could hardly be more critical. If we don’t fix this corrupt system, we may as well give up on freedom and constitutionality.
Nearly everything about the existing system is exactly backwards. Let’s think through what would happen with a different set of principles:
- The purpose of a law—any law—is to get some person or entity to change its behavior.Behavior change requires clear and comprehensible instructions. Our legal system has a “reasonable person” standard that it applies in many cases. It should apply here, too. If a reasonable person whose behavior a law is designed to change cannot understand the instructions, the law cannot function as intended and should be discarded. Of course, “reasonable” may differ across laws. A law designed to alter individual behavior should be quite simple. A law designed to alter the behavior of sophisticated companies running power plants can be far more complex. The principle, however, remains. Good laws are clear and comprehensible to those they purport to regulate.
- Congress can’t offload its lawmaking responsibility to regulatory agencies. It can seek advice and recommendations that benefit from agency expertise.Agencies can absolutely engage in the process of “notice and comment rulemaking” they’ve been using for years. They should not, however, have final say over which regulations become law. Each new law that Congress hands them should include a timeframe within which the agency must return to recommend appropriate regulations and an interval at which the agency may update those regulations. Congress should then vote on whether the agency’s proposed regulations implement the original law effectively. The U.S. will not longer need a C.F.R. Every “regulation” in effect will be an ordinary law incorporated into the collection of laws rather than regulations, the U.S.C. (United States Code).
- Agencies don’t deserve any special deference.With the elimination of broad agency discretion over how best to interpret and implement Congressional instructions, the primary source of contention between agencies and their enforcement targets will hinge on the application of a law to the specifics of a case. Agencies—and the government in general—should enter court as just one more litigant. Let the agency prove that its enforcement action is more likely than not to be appropriate (i.e., meeting the most common standard in civil litigation).
- Laws and regulations must be kept current.Here’s an exceedingly boring word: “desuetude.” It means that old, stale laws deserve to die. Each agency charged with enforcing a body of law should engaged in an occasional, regular process of “zero basing.” Zero basing is a term taken from budgeting, but it applies just as well to regulatory review. Here’s how it works: Divide all existing regulations into three piles: (i) Not yet reviewed; (ii) Justifiable given current circumstances; (iii) No current justification available. Start with all regulations in the Not-yet-reviewed pile. Review them one at a time, placing them in one of the other two piles. Stop when all pre-existing regulations are in one of those two piles. Then present the whole package to Congress to re-adopt only those that make current sense.
To Govern Best, Govern Least
These four simple, sensible principles—(i) Keep rules clear and comprehensible; (ii) Make Congress legislate rules into law; (iii) Tell the courts to treat agencies like any other litigant; (iv) Keep laws current and relevant—will upend administrative law in the United States.
All four principles flow from a simple belief that the government that governs best, governs least. The default American position should be against creating new webs of rules that ensnare the innocent and reward the connected. Yes, we need complex laws to govern a complex society. But let’s be careful to enact and preserve only the laws we need.
Shorn of the excess, the raw power, the discretion, and the ability to dole out favors, America’s administrative agencies will become much humbler, better focused, and more likely to stick to their missions. Large parts of the existing civil service will leave. (If they don’t, we can try a different trick I once saw Canada put to phenomenal effect: Move the agency out of Washington to some other part of the country. Massive departures and retirements will follow). New recruits will be better suited to the restructured agency.
The devil, as critics of this plan will note, is in the details. They will be correct. The work necessary to reform the APA and zero-base the CFR will be detailed, substantial, and mind numbing. Major MEGO alert! I’m sure we could find plenty of leftists who are up to the task. The challenge is to enlist people who want to see America succeed.
Think of it this way: Draining a swamp is smelly, sweaty, hard labor that requires wrestling the occasional alligator. No one said it would going to be fun, exciting, or even interesting.
It’s as important as it is boring.