In his important new book, By the People: Rebuilding Liberty Without Permission, Charles Murray has produced a penetrating analysis of “the regulatory state” – how it came about, what sustains it, and how we might be able to tame it.
The volume of federal regulation has soared from less than 23,000 pages in the Code of Federal Regulation in 1950 to over 175,000 today. And it continues to increase at a rapid rate, as the chart makes clear. Example: if you are a dentist, you need to be familiar with the Occupational Safety and Health Administration’s 307 page “Manual for Dentists” (cost: $199) if you want your place of work to pass OSHA’s inspectors. The overall federal regulatory budget is approaching $50 billion annually.
Murray writes as clearly as he thinks. The tone of By the People is moderate, the arguments cautious and the citations of facts and events (such as Supreme Court rulings) highly supportive of his propositions. Moderate liberals and conservatives, as well as civil libertarians, will find his conclusions persuasive.
Murray is pessimistic regarding the possibility of reform via Supreme Court appointments or legislative action. The weight of precedent and the fact that “the political system has tied itself in knots” appears to rule out those options today. (He might have described the circumstances that enabled President Carter and his regulatory czar, Alfred Kahn, to successfully in obtain legislation from Congress that liberated the trucking, airline, and railroad industries from vast amounts of counter-productive regulation, and why that wouldn’t be possible today.)
A “Madison Fund”? Murray is most constructive in suggesting how we might pare back the regulatory “infrastructure” through “systematic civil disobedience” that overwhelms the bureaucrats. This would be done via third-party financed legal challenges to egregious examples of regulatory law enforcement triggered by regulations derived from vague federal legislation. Third parties might be professional associations that insure their members from the costs, including fines, of defending themselves from “arbitrary and capricious” actions by the agencies. Or funding could be provided by a “Madison Fund” endowed by a couple of today’s billionaires.
Most individuals, professionals and small- and medium-sized businesses that are cited by the regulatory agencies are small fry – and as such, not in a position financially or time-wise to resist an agency’s assault. Consequently, they typically roll over and pay a fine. The availability of third party legal and financial support would change this.
The Case for Civil Disobedience. Murray’s prime targets would be patently ridiculous enforcement actions on the part of federal agencies like the EPA wetlands compliance order against a couple trying to build a new home (they successfully resisted the EPA, but it took a 9-0 Supreme Court ruling to end the struggle). My targets for “civil disobedience” legal resistance, as readers of this blog may suspect, would be the Health and Human Services Administration (patient privacy regulations) and the Treasury Department (money laundering).
The focus of the “civil disobedience” litigation would be on “arbitrary and capricious” enforcement actions, not the underlying regulations themselves. That step would occur at a later stage, when sufficient cases have been won and widespread publicity has been given to the underlying issues behind the legislation that gave rise to them.
Given the limited resources of the agencies to deal with a multitude of well-financed, lengthy challenges to their most questionable enforcement actions, Murray posits they will back off. They would not have enough lawyers to handle them.
The existing model for such behavior: speed limit enforcement. Almost no one exceeding speed limits by 5-10 mph on an interstate is pulled over by troopers for breaking the limit. To do so would swamp the legal system. Truly dangerous behavior is what the troopers are looking for. This is what the regulatory agencies should be doing.
Responding to the spreading tentacles of the regulatory state via systematic civil disobedience is an audacious proposal. It deserves serious consideration. In short, By the People is an important, readable book. Buy it for yourself and send a copy to someone who has had a bad experience with the regulators.
And, if you have one, a billionaire friend.