Regulation Run Amok—And How to Fight Back

By Charles Murray
http://www.wsj.com/
May 8, 2015

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 ofSackett 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.