Dictatorship by the Administrative State

In an earlier post, I wrote the following:

Bureaucracy encourages a legalistic, rule-bound mentality. It says, in effect, you can only do what has been codified. This leads to the generation of hundreds of thousands of rules and laws to control behavior, coupled with the impossible-to-follow proviso that ignorance of the law is no defense. This is why the bureaucratic state has become the modern form of dictatorship, a system of excessive law (Applying Principles, p. 328; see also, pp. 117-21).

Bureaucracy and administrative state are essentially the same thing. Bureaucrats are unelected administrators and policy makers who run the various governmental bureaus—about 432 in the United States to be exact. (Another, more recent term to disparagingly describe these bureaus is “deep state,” though it is broader including think tanks, military leaders, and the national media.)*
 
In contrast to the administrative state, as I continue in the above earlier post:

A truly free society . . . says you can do whatever has not been codified, i.e., you can do whatever you choose provided you do not violate the rights of others. Rules and laws are few and they are abstract principles. Communication, persuasion, and appeals to inner values become the primary means of relating to others.

And according to defense attorney Alan Dershowitz, criminal law during the early days of this country was simple enough to be read and understood while running!
 
What we have discovered in recent years, however, is that excessive law, vague and overly broad law, and complicated law that cannot be “read and understood while running” are not the only obstacles to a truly free society.
 
Many top bureaucrats in the administrative state are highly partisan, and in some cases, power-mongers who have little respect for their duties as administrators and policy makers, often following the progressive mantra of  “logic, consistency, and truth be damned.”
 
In our American bureaucracy, to administrate means to execute or implement the policies of the sitting president. As policy makers, the obligations of the various bureaus are to make recommendations to the current administration. Nothing in the job description says that bureaucrats may refuse to comply with the Executive’s orders.
 
“Refusal,” however, is the least of what occurred in our previous presidential administration.
 
James Sherk, domestic policy advisor to the President Trump, states that there are about 4000 “at will” political appointees in the bureaucracy, but a total of 2.2 million—essentially tenured—bureaucrats, because it is nearly impossible to fire them. The “at will” appointees, in contrast, can be fired by the Executive. Delegation of work to be done is usually handed down to those senior, unfireable bureaucrats.**
 
It is the higher echelons of this semi-permanent deep state that are the ones who can cause problems for a sitting president. For example, Sherk summarizes what such career bureaucrats have often been guilty of:

• Withholding information;
 
• Refusing to implement policies;
 
• Intentionally delaying or slow-walking priorities;
 
• Deliberately underperforming;
 
• Leaking to Congress and the media; and
 
• Outright insubordination.

Among the worst of bureaucratic subterfuge and insubordination were the self-appointed dictators of public health who led the charge to establish, and continue to rule over, the past two years of covid totalitarianism. Refusal to listen to, implement policies for, or cooperate with the sitting president was worse than palpable. Deception, manipulation, and glaring incompetence due to lack of medical qualification are now being bragged about in post-covid books (see analytical reviews by Lerman and Tucker).
 
Not reading the science or respecting the judgments of such people as Dr. Scott Atlas was typical. Atlas, for example, would walk into meetings of the coronavirus task force with arms full of recently read and analyzed scientific studies—only to be greeted with blank stares and sometimes explicit statements that said, “We don’t care about that.”
 
And Dr. Paul Alexander reports that the bureaucrats he dealt with told him that neither he nor the President had any power, which meant he should toe the line of the deep state or resign. When he was threatened to have his career destroyed—initially, the bureaucrats at Health and Human Services, who hired him, refused to pay him—he resigned.
 
To counter the disingenuousness of these career bureaucrats, Sherk spearheaded the development of executive order Schedule F, signed into law a couple of weeks before the 2020 election, but rescinded almost immediately by the incoming administration. The order focused on making it easier to remove ill performing or insubordinate career bureaucrats. Sherk comments: when the deep state caught wind of the order, “it lit their hair on fire.” Hence, the immediate cancellation.
 
The source of the growing bureaucracy began with the Pendleton Act of 1883 that eliminated the “spoils” (crony) system, though the difficulty of firing bureaucrats did not begin in earnest until the 1940s.
 
The solution to getting rid of this approach to dictatorship is to start closing down government agencies. As columnist Jeffrey Tucker said, talking about the US Department of Education:

Pull the plug on the whole thing and sell the real estate. . . . New CEOs do it all the time. They shut down whole divisions, let go thousands of employees, end relationships with suppliers, sell off properties, and do anything possible to save the company. They do it in order to survive. The company in this case is the United States and it too needs saving.

Send the bureaucrats packing to find honest jobs in the marketplace where their primary task is to satisfy paying customers. Most have likely never held such a job. They have no clue what working in business is really like.
 
Once accomplished, the government may then get back to its constitutional function of protecting individual rights—rather than violating them.
 
 
* Regulatory agencies in particular are unconstitutional because they combine the executive, legislative, and judicial into one governmental organization, violating the separation of powers. The progressive supreme court of the 1920s and ‘30s disagreed, allowing the alphabet soup of agencies to grow seemingly exponentially (see Philip Hamburger, The Administrative Threat; also Applying Principles, pp. 81-83; and here).
 
** The bureaucratic process of trying to fire someone allows for a variety of appeals, requests for reconsideration, and, ultimately, arbitration, which after several months or years often ends in declaring it unjust to fire the employee. Not unlike the academic world.

Who Are We Going to Coerce Today?—Also Known As: Politics Is a Bore2016 Version

In November 2012, I published a paean to our national elections titled “Politics Is a Bore.” Some months afterwards I changed the title to the more apt “Who Are We Going To Coerce Today?,” because coercing innocent people is what contemporary politics is all about.

Below is a lightly edited and updated version of the 2012 tribute.


The term “political junkie” is familiar to all of us today, but when I first heard it years ago, used by a news reporter to describe herself, I was puzzled. Why, I thought, would anyone be so obsessed with politics to spend every waking minute following every conceivable tidbit of information coming out of the political arena?

Perhaps the reporter’s interest in politics was strictly professional, to cover what was going on, but I suspect that many in her position, as well others who follow political news closely, admire the entire system and consider it important to support. Many political junkies, I fear, are those who admire the coercive apparatus of the state and relish the thought of being in a position of political power to make political decisions.
   
To me, politics is a bore—precisely because it is all about coercion, the government-initiated type; it’s seldom about reducing government involvement in our lives. And following politics closely, as many do, means their interest really comes down to: who is going to be coerced today? Let’s see who’s going to be told by the anointed authorities what they can and cannot do. Protecting individual rights has long since disappeared from our political landscape such that decisions in today’s government-by-lobby mixed economy invariably constitute violations of innocent victims’ rights for the sake of someone else’s rent-seeking benefit.

Just look at the disgraceful shakedown of Gibson Guitar [in 2011], carried out in the name of the environmental lobby. Flimsily suspected, but never charged, of illegally importing wood from Madagascar and India, the company was twice raided with Gestapo-like tactics by armed, bullet-proof clad SWAT teams. At a 2011 press conference, Gibson CEO Henry Juszkiewicz courageously called the Justice Department on its flagrantly unjust laws and tyrannical procedures. Because of the outcry that followed, the Department compromised by allowing Gibson off the hook with a settlement: $350 thousand in fines and censorship (a gag order) not ever to do again what Juszkiewicz did at his press conference, namely to contradict the alleged facts claimed by the government (1, 2, 3). If this is not coercion in politics—the initiation of the use of physical force against innocent victims—what is?

Now I suppose one could say that some politicians are trying to do good things in Washington and the state capital. And I will grant that maybe one or two may be trying to roll back government intrusions into our bedrooms and board rooms. Ron Paul’s two presidential runs have certainly given a hearing to new ideas and Paul Ryan has put Ayn Rand’s name in the news [in 2012, not 2016!].*

But, seriously, what have Democrats and Republicans done in the last hundred years to increase the protections of individual rights? Democrats make no pretense at rolling back government interventions; they are only too eager to pass more laws increasing the state’s size and power. Republicans, on the other hand, are notorious for paying lip service to the free market and capitalism, but when in office they end up increasing the government’s coercive powers more than the Democrats would have done. Look at the two previous Bush administrations.

“Passing a law” for over a century has almost always meant increasing coercion against an innocent party for the gain of a pressure group. The “squeakiest wheel,” of course, gets the grease in a mixed economy; that’s the fundamental theory of the system because there is no just way to determine who gets the favors, or should I say, rents. But the laws are democratically passed by vote, one might object? Democracy, as the Greeks taught, can be a form of dictatorship and Hong Kong survived quite well for decades under the British common law without general elections.**

That’s not to say that I don’t believe in voting, though not voting is just as valid a participation in the system as pulling a lever. In the current political season, I will vote against the many California tax propositions and probably vote for the lesser of two evils for president. [Not in 2016. I’m voting for Gary Johnson.] I was going to write in Ron Paul’s name, as I did four years ago, but I think a statement does need to be made in this election. I realize that my vote in this very blue state is virtually worthless and, after the election, politics will resume its usual games of playing “who are we going to coerce today”?

Yawn! Wake me up when something really good and important happens.

Altering a bit what I have said before, “I do not expect life to improve much, if at all, in the next four years of the [next] presidential administration. I do not expect the [next] (or [current]) administration to be the indicator of the beginning of the end of civilization as we know it.” Life goes on. Cultural and political systems change slowly. Political junkies can continue to obsess over every coercive decision that is made in positions of power. I will read and write about other topics.


*A recent informal search of The NY Times produced these mentions of Ayn Rand’s name: 97 for all of 2011, 10 for the first quarter of 2012, 68 for the second quarter, and 147 for the third. Paul Ryan seems to be doing some good, though most comments about Ayn Rand in the Old Gray Lady remain smarmy, snarky, ignorant, and hostile. Perhaps after I am dead, these Times writers will also be dead and younger ones will take their place, ones who have actually read Rand’s works and are capable of separating her personality and followers from her ideas.

[Update: 38 mentions for all of 2015, 6 for the first quarter of 2016, 8 for the second quarter, and 6 for the third. A few mentions in the past five years have seemed a little more neutral. Most recently, in a book-review-page author interview, mystery writer Otto Penzler said he has “virtually all the books written by Ayn Rand, several read more than once” and his favorite fictional hero is Howard Roark. Are times (or The Times) changing?]

**I’m not convinced that the vote is fundamental to a genuine liberalism. The classical liberals saw it that way, but Hong Kong has shown us that a constitution and legal system that are adhered to do not require voting to keep the system going. When African Americans and women attained the right to vote, that did not guarantee them the protection of other, more important rights to liberty and property. [See section 8, chapter 1, of Ludwig von Mises’ Liberalism. The primary purpose of democracy, he says, is to avoid civil war by ensuring a peaceful transition of leadership.]


Postscript, 2016. It seems I used the phrase “politics bores me” in my September 2008 hymn to our political system. I was talking about the two liberalisms, the left’s version and the Misesian one. In September of this year, Jeffrey Tucker wrote at fee.org urging us all to take back the Misesian word. Why? Because the left is tending not to use liberalism to describe their brand of politics, preferring to call themselves progressives. To those who know what is happening on college campuses, it is obvious why the left is abandoning the word: they no longer pretend to be advocates of freedom. In July I used the f-word (fascist) to describe the early progressives; the shoe seems to fit. And Tucker, in this recent piece, implies that the premise of a total state began with the early progressives.