“The infirmities most besetting popular governments . . . are found to be defective laws, which do mischief before they can be mended, and laws passed under transient impulses, of which time and reflection call for a change.”
—James Madison
Public policy must aspire to be practical, just as officials should be. Programs that are no longer needed should be repealed. Programs that don’t work as intended should be amended.
Congress has the responsibility of overseeing laws, but doesn’t do its job. Programs and regulations have piled up, decade after decade, with no serious effort to coordinate and cull them. Small businesses, doctors, and teachers trudge through knee-deep requirements, some important, some not. Public resources are wasted in programs that everyone knows are obsolete. Congress is a failed institution for many reasons, but among them is that it doesn’t keep law aligned with the needs of society.
Courts work better, and provide impartial forums to resolve disputes. But courts too must be sensitive to the actual social impact of their rulings. Courts have defaulted almost completely in overseeing how their norms of justice affect the functioning of society. An epidemic of defensiveness has spread across the land. Businesses are scared to give references; teachers won’t put an arm around a crying child; disclaimers and warning labels litter our lives—for one reason: lawsuits have no knowable boundaries because courts let people sue for almost anything.
I don’t blame Congress and the courts for not fixing the philosophy of correctness. Once that train got going, propelled by guilt and distrust, it is hard to see how anyone could stop it without a countermovement armed with the facts linking correctness to the public’s frustrations. But neither Congress nor the courts have even tried to account for the social wreckage left behind by their laws and rulings over the past fifty years. What matters is how law actually works. That’s their responsibility.
A nation of obsolete laws. Congress treats old statutes as immutable features of nature, like a mountain range, rather than mandates from a prior generation that may not meet the needs of America today. The statutory accretion has resulted in a progressive public paralysis, enormous waste, and a cornucopia of unintended results.
Americans constantly find themselves tripped up by laws that make no sense to anyone. For example, a 264-foot fishing trawler was built in 2018 for an American company by the Dakota Creek shipyard in Anacortes, Washington. The state-of-the-art trawler is cleaner, more fuel-efficient, and safer for the rough waters off Alaska than the forty-year-old trawlers currently used by the owner. But about 10 percent of the steel was prefabricated in the Netherlands, which means that the trawler doesn’t qualify as American-built under an obscure provision of the 1920 Jones Act, which requires American-made ships for domestic shipping. The owner thus cannot use a safer and cleaner ship made in an American shipyard because of an obscure requirement in a law enacted a hundred years ago—long before global commerce made foreign components almost unavoidable in complex products. The ship might have to be sold to a foreign buyer.
It’s hard to find a statutory program that isn’t broken. The question is whether it’s broken 25 percent or 90 percent. The mandate by Congress in 1975 to provide special education services was not intended to consume 25 percent of total K-12 budgets. That’s about $150 billion a year, much more than needed in a less bureaucratic program.
Congress is like the Roach Motel; laws check in but they don’t check out. Farm subsidies from the New Deal cost about $15 billion annually; the Davis-Bacon law from 1930, a union freebie that sets wages on federally funded construction projects, raises labor costs by about 20 percent. The 1920 Jones Act, referred to above, doubled the costs of relief shipments to Puerto Rico after Hurricane Maria in 2017.
What is called “the law of the land,” Democratic congressman Jim Cooper told me, is “huge piles of laws that are duplicative and ineffective.” Cooper pointed to a study of federal job training programs by former Sen. Tom Coburn, which concluded that none of them is effective and had seldom even been studied. Each layer in the “sedimentary process of legislation,” Cooper said, was driven by a candidate’s desire to “brag about ‘creating jobs.’ ”
Congress’s lack of discipline is breathtaking. David Fahrenthold of The Washington Post has written a series of articles that resemble comedy more than reality. Try to figure out, for example, whether you are a “small business.” There are more than a dozen different definitions. Or what constitutes “Made in USA.” The FTC guidance is thirty-seven pages long. Peter Schuck’s book Why Government Fails So Often contains an inventory of duplicative and counterproductive programs, such as 53 separate programs to spur entrepreneurship, 209 to promote science and math education, and an organ replacement program so bureaucratic that its loss ratio for kidney transplants is double what it should be.
Republicans constantly attack what they view, often correctly, as the unnecessary burden of administrative regulations. Their proposed REINS (Regulations from the Executive in Need of Scrutiny) Act, for example, would prevent any major new rule unless Congress approved it. But this high hurdle for new regulations would do nothing to relieve the burden of existing regulations. Fifty years of regulatory accretion, not next year’s stratum of new rules, is what Americans need relief from. Moreover, REINS addresses only agency regulations, and assumes no responsibility for the junkheap of statutes that authorizes all those regulations. Why don’t Republicans in Congress clean out their statutory stable first?
Other countries show more discipline. Germany, for example, evaluates the regulatory impact of laws, and adjusts them accordingly. As Chancellor Angela Merkel put it:
Laws are not made for the statute books. They must be made for real life. . . . This means that law-makers must frame laws in comprehensible language, design them to achieve their intended purpose, and regulate only what really has to be regulated.
The UK’s worker safety framework, by contrast to America’s, is results-oriented, flexible, and cost-effective. The Organisation for Economic Co-operation and Development (OECD) evaluates the effectiveness of economy-wide regulation of its thirty-six member nations. The United States ranks fifth from last.
Tolerating wasteful and broken programs should be a scandal. I did a rough list of ten wasteful statutory programs and came up with unnecessary costs of almost $1 trillion per year. (My complete list is in the endnotes). This waste, totaling almost $10,000 for each American family each year, doesn’t include the burden and frustration of complying with needless regulatory dictates.
Every public dollar involves a moral choice. A dollar spent on a farm subsidy is a dollar not available for, say, modernizing infrastructure. Not facing up to the unavoidable reality of scarcity is an abdication of Congress’s core responsibility.
Most regulations address real needs. An interdependent society, characterized by dealings with people you don’t know or trust, creates public demand for government oversight of safe products, competent care, and clean water. But “more is different,” as a scientist once observed. More medicine can harm you. More regulatory protections, unless implemented in a practical way, can crush people under unknowable burdens.
Americans think they’re regulated by “the government.” But in fact they’re effectively regulated by multiple governments, as with Indian Ladder Farms, the apple orchard described earlier. Different agencies operate in separate silos, and, among their thousands of requirements, many seem like solutions in search of a problem.
The patriarch of Indian Ladder Farms, Peter Ten Eyck, seventy-nine, thinks that pages of worker safety rules on how to use ladders, or the food safety rule to cover apples in the short journey to the barn, are obviously imposed by “people looking at a computer screen dreaming up stuff.” The farm keeps thirteen clipboards in the office to try to keep track of paperwork and “another dozen thick binders and manuals” for the dozen or so agencies that regulate it.
Having a clean track record is no protection against grueling regulatory intrusions. In the 2017 picking season, when the farm employed workers from Jamaica with temporary work visas, a team from the Department of Labor made a surprise inspection. The workers’ papers were all in order, but the inspectors demanded twenty-two types of reports dealing with everything from vehicle registrations to time sheets, and said they would be back the next week to review them. The farm doesn’t have a back office to speak of, so family members and other employees, in the middle of the busiest time of year, spent about forty hours collecting the material on wages, insurance, and immigration status. At the end of the day, all the inspectors could find were a few immaterial items of noncompliance—for example, one worker was performing tasks more relating to the farm’s retail operation than agriculture. That supposedly matters because it represented a deviation from the worker’s H2A visa (a program so complicated and onerous that many farmers simply resort to hiring illegal immigrants). The inspectors levied no fines, ordered that the infractions be corrected, and, after three visits, let the exhausted family return to the busy season.
The inspectors were professional, Mr. Ten Eyck’s daughter Laura said, but what bothered the family was the approach of showing up periodically to try to “find something wrong.” The farm had no history of being a scofflaw. Ms. Ten Eyck said she agreed with most of the regulatory goals, but longed “for a clearinghouse that would simplify the regulatory labyrinth.”
Getting a permit from hydra-headed government is a similar story, except that the citizen is stymied from doing anything until all hydra heads have been satisfied. Raising the roadway of the Bayonne Bridge required forty-seven permits from nineteen different agencies. Opening a restaurant in New York, Mayor Bloomberg found, required permits from eleven different agencies. It takes so long in Illinois to approve placement for a foster child that many children “age out” of foster care before a family is found. Uncoordinated regulation accounts for the fact that the United States is now forty-ninth in World Bank rankings for ease of starting a business.
From the citizen’s standpoint, it matters little where the burden comes from. Nor does it matter that each goal, viewed separately, seems reasonable. What matters is that, collectively, all these burdens are exhausting Americans—a mindless security screening line for almost any productive activity. Small business managers, doctors, teachers, and others who deal with the public increasingly can’t focus on their jobs. This approach to regulating is another reason why, I believe, many Americans voted for Donald Trump.
Other countries don’t tie up their citizens in red tape. Most countries in the OECD, for example, aspire to a “whole-of-government” approach and have created “one-stop shops” where a small business can go and get all the permits needed to start a business. The processes consume between a day (in New Zealand) to no more than a week (in Canada, Portugal, Germany, and other countries). In America, it can take months. Other countries also have one-stop shops for citizens to deal with social services. Portugal has eliminated most licensing laws, replacing them with after-the-fact inspections. Countries in Africa, Asia, Latin America, and the Middle East are increasingly instituting one-stop shops.
Government is supposed to serve the people, not vice versa. In America, only a few states and cities have dipped their toes into making it practical for citizens to interact with government. Mayor Mike Bloomberg, for example, created a 311 line for people to complain about government services, which has proved practically a godsend. Before 311, citizens had to navigate dense phonebooks and make multiple calls to try to find the right official—hours that often ended in failure.
Now that voters are lashing out in frustration over the accumulated burdens, it’s time to reconfigure regulation to a human scale. We can draw on best practices from other countries, for example, assessing risks in order to “direct regulators’ efforts at areas where it is most needed.” We can also recommend pilot projects with other approaches—for example, to help citizens comply by using professionals who might be called “certified regulatory experts.” Like auditors, certified experts would do periodic inspections and could help the business get into compliance. Regulation would become positive, instead of gotcha. This collaborative approach to regulation is one that OECD is recommending as having the best chance of aligning public goals with need to honor individual circumstances.
What’s needed is to push the reset button. But simplified codes cannot be drafted by Congress, for many reasons. Congress can barely do basic blocking and tackling, and its recent laws are models of opacity and complexity, not clarity. You would have thought that at some point in the last fifty years some members of Congress might have asked, “How can we do our jobs if we are unable to read or understand the proposed statutes?”
Correctness made law incoherent to everyone. The acquiescence of members of Congress to impenetrable law reflects, I’m afraid, their genuine indifference to their responsibility as lawmakers. Even without the obsessive quest to dictate correctness, however, designing simple codes would always be difficult for Congress. Statutory simplicity violates the laws of legislative physics—collecting votes requires appending favors, exceptions, and other amendments. That ends up, usually, in a tangle that looks like the tax code.
The best way to create simplified codes, probably the only way, is by appointing one or more “recodification commissions” to propose new structures. Appoint a committee to make a comprehensive proposal and then, after debate, approve some version of it. Expert committees designed the Justinian Code in the sixth century, the Napoleonic Code in the nineteenth century, the German Code at the turn of the twentieth century, and the Uniform Commercial Code in the 1950s. These were all transformative legal reforms.
Congress uses the model of independent commissions to make the politically difficult choices of which defense bases to close down. These “base closing commissions” make proposals, which Congress then has an opportunity to veto. No horse trading or complicated amendments. The inability to haggle gets individual members off the hook for failing to include some perk for a particular special interest.
Not much time should be needed for recodification commissions to do their initial work, particularly if they hew to the mandate of simplified codes focusing on public goals and frameworks for responsibility. The Simpson-Bowles Commission for balancing the budget deliberated for seven months. The proposal for what became known as the Napoleonic Code, recodifying all the laws of France, was completed by a committee of four judges in about five months. It was then debated by the legislature for a year before it voted to approve the final version. To use an example from corporate bureaucracy, it took no time at all for General Motors CEO Mary Barra to simplify its ten-page dress code to two words: “Dress appropriately.”
The recodification commissions should make proposals to (1) simplify regulatory structures to revive human responsibility as the activating mechanism for public choices, and to create “one-stop shops” so that citizens can deal with one government; and (2) reset priorities, including proposals to repeal or fix obsolete programs. Historically, recodifications have energized societies weighed down by tangled legal accumulations.
Even with updated codes, however, we’re still left with governing institutions that can’t seem to do their jobs. I’d give the commissions two more assignments: to recommend changing how both Congress and the courts work, so they can better fulfill their responsibilities.
Just as codes must be simplified to restore human responsibility, so too Congress must be reorganized to restore responsibility to identifiable members.
Congress has a 12 percent confidence rating from the American public, lower than any other institution in society. I’m surprised the rating is that high; those citizens in the 12 percent don’t understand how irresponsible Congress has become. Other than constituent service, most members of Congress might as well be performing in a high school play. They hold hearings on regulatory problems, at which I sometimes testify, but they’re often just platforms for grandstanding. Not much comes out of them.
Congress has lost the capacity for action, experts say, because it has become a soapbox for partisanship. Congress was once a body in which committees had authority to roll up their sleeves and fix things. Now it is dominated, as critics Thomas Mann and Norman Ornstein explain, by powerful leaders focused on making the other side look bad. They particularly blame Republicans, who beginning in the Gingrich revolution in the mid-1990s adopted a take-no-prisoners approach that poisoned the well for actually getting together to solve problems.
What do members of Congress actually do? Most of the important decisions, say about the budget or confirming appointees, are made by leadership. For all the other members, Congress is basically organized to create the appearance of action. As comedian George Carlin put it, channeling Washington talk, they “move the process forward [to] implement the provisions of the initiative in order to meet these challenges”—i.e., they do nothing.
A proliferation of committees and subcommittees is designed to maximize chairmanships that members can tout back home. The head of Homeland Security told me he reported to almost one hundred separate committees and subcommittees.
Executive branch officials don’t take Congress seriously because they know it’s all for show. Hearings are for posturing, and lawmaking too is often for show—members propose “messaging bills” designed to make a point, not to actually be enacted. For example, Republicans have introduced over sixty bills to repeal or amend the Affordable Care Act, aka Obamacare.
Reporter David Fahrenthold has also sunk his teeth into the giant blob of congressional make-work. He found, for example, that Congress requires over 4,000 reports each year from 466 departments and nonprofits, including, until Fahrenthold’s exposé, the Dog and Cat Fur Protection report. Another report, on the Social Security printing operation, presents Congress with such useful details as the serial number of a forklift. It’s almost as if Congress, by requiring thousands of reports and hearings, is trying to divert the Executive Branch from doing its job. The report on the Social Security printing operation, Fahrenthold reports, “takes about 95 employees and 87 workdays to complete.”
How can Congress be reorganized so that it can fulfill its lawmaking responsibility? Any deliberative body of 535 people will have challenges doing anything. The Framers saw this as a virtue, since there would be fewer laws. Fast-forward 230 years, and America has the opposite problem: it is crushed by the accumulation of law, and Congress can’t clean it out.
Part of the solution is to shift authority back to committees. Congressman Jim Cooper describes this as going back to “regular order”—“a return to functioning committees in Congress, when members who have attended lengthy hearings hammer out legislation on a bipartisan basis, relying on their expertise more than on lobbyists.” Pushing power down to committees also reduces the diffusion of accountability. At least a committee chair and ranking member will have to explain why this or that idiocy continues to exist.
A recodification commission might propose a constitutional amendment for sunsetting laws with budgetary impact. The Framers made a mistake, as I explain in The Rule of Nobody, by not providing a practical way to amend and repeal law. The deck is stacked against removing old programs. “Factions” do not counterbalance each other, as the Framers had hoped, but scratch each other’s backs: “I’ll vote for your absurd subsidy if you vote for mine.”
Sunsets could be also be implemented by further expanding the authority of congressional committees since, even in the glory days of Sam Rayburn and Howard Baker, Congress never had a great track record of dealing with old laws. Perhaps there could be a new protocol, for example, that could give committees presumptive power to amend laws within its jurisdiction—provided, say, that the change is supported by two-thirds of committee members and also by the minority leader. If those conditions were met, then Congress would automatically approve the committee’s amendments. For keeping laws up to date, committees would become mini-legislatures.
Courts are not generally thought of as governing institutions, except for the Supreme Court. Courts are there to resolve disputes. How courts work is so well established that no living person has debated the basic conventions of modern justice. We all know the drill: anyone can sue for most accidents and disputes. An impartial judge oversees the case, and an impartial jury makes a final decision. We are taught that American justice is the fairest in the world because it has so many safeguards of impartiality.
But the facts suggest that fair justice isn’t thought to be fair. Americans overwhelmingly distrust justice—only 16 percent in a 2005 Harris poll said they would trust justice to protect them against a baseless claim. The result is that a culture of defensiveness is supplanting America’s can-do culture. People are paranoid about being sued. One of the casualties is responsibility: people are reluctant to take responsibility if they can get sued even when they didn’t make a mistake.
Here are some ordinary choices that Americans no longer make reasonably, because of fear of lawsuits:
It’s perfectly reasonable to let the nine-year-olds play in the backyard by themselves. But what if there’s an accident? Pretty soon parents are hovering over children, which psychologists say stunts their emotional growth.
It’s unlikely that the headache is anything but that, but who will defend the doctor if it turns out to be something serious? Better order a CT scan. Studies estimate that “defensive medicine” costs society $45–$200 billion every year.
Co-workers don’t think Harry is pulling his weight, and don’t like working with him. But he’s the contentious type, so he may sue if he’s let go. It’s easier just to leave well enough alone.
There may be no serious environmental effects of this project, but one group wants to block it, so we’d better spend years doing a dense environmental review statement to defend it in litigation.
Americans didn’t use to sue for the moon, or threaten lawsuits when their child got a bad grade in school. What happened? Correctness rears its head again. Justice, like government, was remade after the 1960s with the philosophy that judges should avoid making rulings of what is reasonable. Judge Charles Wyzanski enunciated the new philosophy this way: “Choosing among values is much too important a business for judges to do the choosing.”
In this conception of modern justice, all decisions would be made by an impartial jury without the risk of judicial values. “Who am I to judge?” as the McDonald’s hot-coffee judge asked me. So judges let people sue for almost anything, in almost any amount.
What’s missing in American justice, causing this pervasive defensiveness, is the law part of lawsuits. Neither judges nor legislatures are drawing boundaries of reasonable claims. We wouldn’t let a prosecutor seek the death penalty for a misdemeanor, so why did we let an angry public employee in DC sue his drycleaners for $54 million for losing a pair of pants? He lost, of course, but only after years of litigation that ruined the lives of the cleaners.
Judges should declare norms of reasonableness as a matter of law, not avoid them. Their rulings of law are how courts protect the boundaries of a free society. “Maybe you can claim $300 for your lost trousers in small claims court, but not $54 million in a court of general jurisdiction. Case dismissed.” That takes about five minutes in the first hearing. That’s how judges can protect the reasonable norms of a free society.
Defenders of the current system argue that they trust juries more than judges. Yes, juries are generally sensible, but juries have no authority to set precedent. Juries render ad hoc verdicts, thumbs up or thumbs down. Then the next jury is free to do exactly the opposite. So how’s a person to know what’s too risky? Most citizens in a free society don’t want to play Russian roulette with the jury system. So they become defensive and make daily choices on the assumption that “an act is illegal,” as Professor Donald Black concluded, “if it is vulnerable to legal action.” If a town is sued for a sledding accident, no matter how a jury decides it, then pretty soon other towns will ban sledding. After all, the next jury may not be so tolerant of the risks of having fun.
Private lawsuits affect all of society. What people can sue for establishes the boundaries of everyone else’s freedom. In a famous English high court opinion in 2001, Lord Hoffmann held that common law required judges not just to consider whether risks were foreseeable, but also rule on “the social value of the activity which gives rise to the risk.” As another judge asked, “Does the law require that all trees be cut down because some youths may climb them and fall?”
The reluctance of American judges to defend social norms as a matter of law is mainly rooted in the orthodoxy about the right to jury trial in civil cases. The Seventh Amendment provides a constitutional right to jury trial. What that means, pretty much everyone believes today, is that the jury must decide all issues.
But the role of juries in civil cases is to decide disputed issues of fact—like who ran the red light, or is telling the truth. Juries have no authority to decide, as a matter of law, whether sledding is a reasonable risk. Because the reasonableness of sledding is a norm that people need to “know beforehand,” Justice Oliver Wendell Holmes Jr. thought it should be decided by judges as a matter of law and should not be “dependent upon the whim of the particular jury.”
What about “judicial activism”? Holmes’s pronouncements on the role of the judge seem flatly inconsistent with today’s accepted wisdom that judges should never be “activist.” The sin of activism, however, is for a judge to make legislative judgments about how to run jails or school systems. By contrast, judicial rulings on the reasonableness of private claims and defenses are essential for public trust of justice. When judges sit on their hands and let litigants claim almost anything, courts can be used as a tool for extortion by any self-interested person.
Here’s the fact people forget: lawsuits are not a unilateral act of freedom, but a coercive use of state power. Getting sued is just like getting indicted, except that the indictment is for money. It all comes down to a verdict where the sheriff may come and take your house away. Lawsuits are a tool of freedom, not extortion, only if judges act as gatekeepers and prevent private persons wielding the sword of state power unreasonably.
The current orthodoxy of judicial responsibility is far removed from what I’ve argued here. Some prominent scholars and judges agree with me, but persuading judges to draw boundaries on lawsuits will require a broader public understanding of how sue-for-anything justice undermines freedoms throughout society. A recodification commission could be charged with examining the solutions to the culture of defensiveness that is undermining Americans’ freedom. If it agrees with my analysis, it could recommend a statutory or constitutional solution along these lines: “In lawsuits that may diminish reasonable freedoms of persons in society, or impede the reasonable conduct of government, judges shall make rulings of law drawing boundaries of acceptable claims and defenses.”
Who’s in charge of American government? Here’s my list of vital public choices that no one today is making:
Most laws and regulations were written decades ago, and leave little room for human judgment. America is run not by current legislators but by the officials, most long dead, who wrote these detailed dictates.
Public budgets leak massive amounts of waste from programs that everyone knows are obsolete or broken, but people in charge of Congress don’t do anything about it.
Public agencies are populated by unaccountable civil servants who can’t imagine any other way of governing, and take pride in their expertise about obscure procedures and rules that are impenetrable to the citizens affected by them.
Getting permits requires citizens to spend months or years navigating the shoals of a dozen or more different agencies. Enforcement is done by bureaucrats wearing blinders who are trained to insist on literal compliance, and not to use their best judgment.
Lawsuits are resolved in an ad hoc fashion, with no predictability. Unreliable justice allows justice to be gamed by people for selfish purposes, and fosters a culture of fear.
All reforms of these governing failures start with reviving individual responsibility; results must be linked to identifiable officials. I thought I had used every metaphor for government that is out of anyone’s control, but then I came upon Edna St. Vincent Millay’s poem, “We have gone too far” (1945). Here’s an excerpt, aptly depicting the heedless way Washington governs:
. . .
But we, we have no sense of direction; impetus
Is all we have; we do not proceed, we only
Roll down the mountain,
Like disbalanced boulders, crushing before us many
Delicate springing things, whose plan it was to grow.
. . .
But we, we decide nothing: the bland Opportunity
Presents itself, and we embrace it,—we are so grateful
When something happens which is not directly War;
. . .
We have no sense; we only roll downhill. . . .
No one is in control of modern government. No one designed it either. It’s just an accidental accretion of decades of legislative and judicial decisions and compromises, piled on top of each other as every “opportunity present[ed] itself.” Now this huge government boulder is rumbling and bounding down the twenty-first century. Meanwhile, “we, we decide nothing.”