In his new book The Rule of Nobody, author Philip K. Howard argues that a relentless piling up of laws and regulations has made our government inhuman, inefficient, and incapable of fulfilling its core duties of serving the public interest. The core thesis of the book is that government would function better if subjected to a broad, principles-based set of guidelines rather than thousands of precise, minute regulations that prevent authorities from exercising their own judgement. More discretion on the part of regulators, Howard argues, would allow common sense to prevail over stifling and restrictive laws.
Howard has done what is easy for any of us to do: he has recognized a problem. This is not a bad thing, rather it is the first step towards finding a solution, but where Howard lapses is in thinking that his key observation that the state is paralyzed by mechanical bureaucracy implies that a mere reversal of this paralysis constitutes a solution.
Howard correctly recognizes that numberless, overly specific rules result in tyranny. Since no one is able to understand and comply with every rule, bureaucrats can selectively persecute anyone they choose. This is undoubtedly true. However, the reverse situation, where the bureaucrat has broad authority to exercise discretion, is equally tyrannical. For example, Howard suggests that an exhaustive list of food standards for nursing home could be simplified to a simple requirement that they provide “nutritious meals.” This sounds like common sense, but what exactly is a nutritious meal? If the inspector happens to be a vegetarian, what is to stop them for forbidding red meat, when the residents and their families were perfectly happy to have it? Discretion allows the biases of individuals to creep into enforcement, and to pretend that anyone is capable of acting wholly without bias is to deny human nature.
We have seen what happens when officials at the IRS are allowed to exercise discretion over tax exempt groups. We have seen what happens when employees of the NSA are allowed to exercise discretion over the use of their surveillance powers. We have seen what happens when the president is given discretion to start wars without going through Congress. The results have been far from desirable.
Howard, to his credit, acknowledges this objection, but he seems to dismiss it without ever satisfactorily answering it. Instead, he offers some bromides about how authority confers responsibility, and theorizes that we can expect better behavior from those who have more discretionary authority. This assumption seems to rest on the conclusions drawn by Stanley Milgram in his famous “just following orders” experiments involving average citizens being instructed to deliver painful electric shocks to perfect strangers. In fact, these experiments have since been largely discredited as methodologically unsound, and it now appears that people are not as willing to blindly follow rules as we have been led to believe. In any case, Howard’s assumption runs counter to Lord Acton’s famous axiom that power tends to corrupt, and seems counterintuitive enough to warrant more than mere assertion without evidence.
Certainly, Howard has a point that allowances should be made for extenuating circumstances, as when firemen stood by and allowed a house to burn down because the proper procedure was for the family to call 911. That is clearly unacceptable. But the argument over striking the proper balance between discretion and rigid rules misses the root of the problem rather badly.
The trouble is that government is a unique institution in that it alone is able to pass laws governing the conduct of others, to imprison them, to take away their right to practice their profession, and in certain cases even to kill them. Howard’s analogy with private institutions working well when there is discretion fails because a CEO cannot coerce his customers. When a CEO exercises bad judgement, he may lose money, or even his business, as customers decline to purchase his product. But he cannot imprison or kill those customers. He has no actual power over them.
The market is a sorting mechanism that keeps these people in line in order to preserve their profits, but government is not subject to market pressures. As such, the problem is more fundamental than too much or too little rigidity. Government is fundamentally corrupt, as it rests entirely on the premise of coercive power. Rather than tinkering with the levels of discretionary authority officials possess, we would do better to limit their power.
For example, Howard gives the example of a children’s lemonade stand being shut down for violating health codes. Of course this is a ridiculous abuse of power, but is the solution to give more flexibility to health inspectors? Howard never questions why the government has any business deciding who can and cannot sell lemonade in the first place. Similarly, the example of a tree falling into a creek and causing flooding is given. The regulators were unable to remove the tree for days because of an environmental regulation. Howard argues they should have been allowed to go around the rule given the circumstances. Perhaps, but why are government workers the ones in charge of removing the tree? It would be better to let private contractors, or even the people harmed directly by the flood, take matters into their own hands than rely on an ineffective bureaucracy. More discretion, yes, but placed in the hands of ordinary citizens rather than government regulators.
Howard says that we need regulations because we place our trust in people we don’t know, and that regulations are the only way to make sure they don’t take advantage of us. But in reality we do this all the time without any need for regulation. Every day people put their lives in the hands of drivers for the private transportation service Uber, which is not subject to nearly the same level of regulation as traditional cab companies, and the system works just fine. It works because the profit motive keeps people in line better than laws ever can. If Uber drivers were dangerous or unethical, the company would quickly fail, so they make sure that doesn’t happen. This is just one example of thousands where self-regulation works.
The other immediate issue with more discretion in how the laws are enforced is the potential for wild swings in interpretations depending of which person or party is in power. If the standards for what constitutes “reasonable” change every time there is an election, it becomes difficult for businesses to plan, and economic growth, not to mention freedom, suffers as a consequence.
Ironically, Howard insists that we can trust government institutions with discretionary power using the example of the Federal Reserve, which has arguably done more harm to the American economy than any other part of government, by inflating the currency and sending false signals through interest rates that result in malinvestment and financial collapse. If this is supposed to reassure us, consider me unconvinced.
Ultimately, the problem with Howard’s ideas is that they rest on the naive fiction that there can be such a thing as “good government.” In fact, the best we can hope for is less government. His presentation of a false dichotomy between regulators wielding power with discretion and bureaucrats bound by senseless rules ignores the truism that whenever you empower certain individuals to rule over others, corruption and abuse invariably follow.