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.

How Free Speech Dies: Follow the Government Intervention—Beyond Section 230

In a previous post I quoted George Orwell on the non-governmental silencing of dissent during World War II England:

Hardly anyone will print an attack on Stalin, but it is quite safe to attack Churchill. . . . Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness.

Wall Street Journal writer Mary Anastasia O’Grady, in a column titled “How Free Speech Dies,” offers more detail on this prelude to government censorship.

Writing about today’s “hyper-intolerance,” and providing examples from Latin America, O’Grady points out the role of “public intellectuals”—upper classes, academics, and media—“intelligentsia” for short, in suppressing disagreement and paving the way for an incoming dictator. O’Grady writes:

Fidel Castro didn’t become dictator for life in Cuba without help from island artists, writers and reporters, many of whom were later jailed or exiled. . . . In his first months in power [Castro] continued to pay lip service to democracy and knew better than to march into newsrooms with bayonets and jackboots. At his disposal were useful journalists ready to do his dirty work by attacking their own colleagues.

“Useful idiots” would be other words to describe the intelligentsia. It’s the “jailed or exiled” (or shot) part that today does not seem to be talked about or acknowledged, as that is often what happens to aiders and abettors of dictatorship. (Remember what happened to the capitalists who sold Lenin rope? Which Lenin then used to hang them??)

O’Grady quotes a 1985 book that says Cuban journalists agreed to write “clarifications or footnotes [and] criticisms of editorials or news items that were not in accord with the official government line.” Ah! Sound familiar to today’s social media? Substitute “party” for “government,” O’Grady says, and you describe what we have now.

But is this cancelling and silencing really non-governmental? Do the self-appointed critics enjoy a government intervention and therefore a privilege that others do not?

This is why I say, “follow the government intervention” (not the money) to find harm to consumers and competitors, though the intervention can be a challenge to find.

Let’s look beyond or behind Section 230 of the 1996 Communications Decency Act. The act itself is an intervention that allows social media to provide platforms for political discourse but also be exempt from liability for their posters’ defamation. Publishers are not so exempt from the frauds of their authors.*

More interventions: The Communications Decency Act is part of the Telecommunications Act of 1996, which itself is a revised version of the Communications Act of 1934, from which we got the Federal Communications Commission (FCC). And that act incorporated regulations from the Radio Act of 1927.

Government, in others words, has its hands all over radio, television, and, today, the internet. What part of “stay out of our personal and professional lives” is not understood by today’s politicians and commentators when promoting and endorsing the silencing actions of social media? These elites, of course, are Progressive experts who, for the past 130 or so years, have encouraged greater and greater government encroachment on our personal and professional lives.

Let’s now take a look at two practical consequences of regulatory intervention and then the constitutional issue.

First, a proper understanding of libel and defamation as established in common law fraud, or the law of deceit, requires proof of several stringent actions before the frauds can be concluded: a false material fact asserted by the deceiver, knowledge of its falsity, intention to deceive, reliance on the assertion’s truth by the deceiver’s audience, and objective injury or damages to the victim.

These requirements, for example, exempt most advertisers from charges of deception—except when their ads are reviewed by the very regulatory Federal Trade Commission. The FTC, depending on its inclinations and presidential administration, have in the past charged advertisers with “misleading and deceptive” advertising by dispensing with the knowledge and intent requirements and assuming injury if a consumer feels mislead or deceived.

The law of regulatory agencies is decidedly nonobjective, in the sense of being overly broad, vague, and often arbitrary.

As second consequence of regulatory intervention, let’s look at television. From the 1950s to the ‘80s, there were three, and only three, nationwide private, profit-making networks: CBS, NBC, and ABC. A fourth, the Dumont network, tried but failed to compete. Why?

The FCC controlled everything in television, from number of television stations allowed to exist in a given community to the number a network could own. The FCC controlled and allocated the number of channels that could exist, where they could exist, and, again, how many a network could have. Finally, entrepreneurs who wanted to run FM radio stations were competing for air waves with the television entrepreneurs, but the FCC decided who got what, where and when. Only three networks could survive such interventions. (See Laissez Parler: Freedom in the Electronic Media, pp. 16-18.)

Why do regulatory agencies have such power? Don’t these agencies violate the separation of powers clause of the US Constitution? After all, they combine the legislative, executive, and judicial functions in one agency: the commissioners write the rules, then execute and adjudicate them (with no jury). Progressives and the Supreme Court from the 1920s on have relied on the rationalization that regulatory agencies are a delegation of power by Congress, a “specification” of Congressional legislation.

Regulatory powers, however, do violate the separation of powers clause and are therefore violations of individual rights. They are, as Ward Lattin wrote in 1938, the “union [not separation] of powers,” the “precise thing that the framers of the Constitution quite unanimously agreed was the very definition of tyranny.”**

Conclusion? Free speech dies, most fundamentally, due to such government interventions. Getting the government out of our personal and professional lives means digging beneath the tip of the iceberg to find interventions, then repealing them. It is these interventions, especially those practiced by the FCC and FTC, that infringe our freedoms of speech and press.

Band aids—revisions of the existing interventions or amendments to them—are not the solution. They exacerbate the problems.

Political action required? Repeal, repeal, repeal!


* Why should social media be exempt from liability? The excuse given is that social media businesses would never be able to grow because they would be spending all their time and money fending off lawsuits. I doubt it. Strict enforcement of the common law requirements for fraud—in a fully free society—would make it difficult for frivolous lawsuits to arise. (The 1996 law, in addition, is also a quagmire attempt to deal with Justice Potter Stewart’s “I know it when I see it” test for obscenity—a paean, one might say, to nonobjective law and alleged and arbitrary “community standards.”) Let the free market decide. Absent government interventions, social media would likely look quite different than it does today—all to the better for both consumers and competitors. Contrary to how Progressives think and view themselves, there is no omniscient deity or crystal ball in Washington, DC, that can predict what the market would or should look like. Only the market—that is, the free choices of consumers and competitors—can decide.

** Ward E. Lattin, Federal Administrative Regulatory Agencies and the Doctrine of the Separation of Powers (Washington, DC: Georgetown University Press, 1938), 27. The book, unfortunately, is not listed either at Amazon.com or ABEbooks.com. See also The Administrative Threat, passim, by Philip Hamburger and Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, pp. 42-45, by Thomas C. Leonard. The 1985 book cited by O’Grady is Harnessing the Intellectuals: Censoring Writers and Artists in Today's Cuba by Carlos Ripoll.
 

How to Eliminate Deep State Dictatorship

Why “deep state dictatorship”?

Let me start with the notion that most people would call the middle point between capitalism and socialism a “mixed economy,” which they also continue to say is a “mixture of freedom and controls.”

I’ll grant the “mixed economy” part but add also that the middle point is a “mixed society”—of freedom and dictatorship. When initiated coercion is used against citizens, it is a tactic of the dictator to control not just the economy but every citizen’s behavior. The mixed economy is a mixture of freedom and dictatorship.

The more initiated coercion is instituted by a government, the more that country will move toward a totalitarian society.

Capitalism is a social system in which the government remains completely out of our personal and business lives. It requires a complete separation of church and state, and complete separation of business and state. Individual rights, especially property rights, are its supreme values and are inviolate. The only function of government is to protect those rights and the only justified use of force is self-defensive to retaliate against those who have initiated coercion. This means all businesses, including schools and highways, are privately owned and operated.*

The “deep state” is a relatively new term coming to us apparently from Turkey where it means a secretive, extralegal collection of military, bureaucrats, and politicians who seek to undermine and, in some cases, overthrow a government (1, 2). In the United States, the term refers primarily to the unelected federal bureaucracy, currently estimated to be about three million,** and occasionally to collaborators, such as lobbyists at the federal level (about 12,000), assorted think tanks, military leaders, and corrupt politicians, some (many?) of whom would gladly sell their souls to undermine an administration and, perhaps, overthrow it. The national media, who repeatedly print and broadcast leaked classified information and seem unable to use objective methods of reporting facts and truth, must be added as the deep state’s courtiers.

But what is the origin of the bureaucracy and how necessary is it? In the Roman Empire, there was a large bureaucracy built on patronage, appointed by the emperor in power. The form and purpose of our present system, however, stems from the Han Dynasty in China (206 BC – AD 220)—the “Mandarin system”—and came to us by way of Prussia in the late eighteenth and early nineteenth centuries and then, finally, by the 1883 Pendleton Civil Service act in the United States (1, p. 157; 2; 3).

The significance of the Han system is that it established testing to determine who was “qualified” to serve in the government; it is actually a pretense at objectivity and is the system we have today. (See Megan McArdle on “America’s New Mandarins.”) The aim of the Pendleton Act was to eliminate the (unqualified) bureaucrats of the spoils system and give us supposedly highly qualified government workers. The difference between the two systems is that the spoils workers (a very small number in the US) were usually gone when the next president was elected. In modern systems, bureaucrats, which in numbers multiply like rabbits, may and often do spend their entire careers in the nation’s capital, outlasting many presidents.

This is our inheritance from the Progressives of the late nineteenth century (Applying Principles, pp. 110-13), the Progressives who were trained in Germany by their democratic socialist professors. The deep state, encroaching more and more on the private sector and our rights, is rapidly moving us toward the giant post office that Lenin envisioned as the socialist state.

The deep state is dictatorial because nearly all of its rules, regulations, and laws are initiated coercion. The message to citizens is always some variation of “you must do this” or “you cannot do that.” These are not rules, regulations, and laws to protect individual rights against initiated coercion. They are themselves the initiation and are therefore dictatorial.***

How do we eliminate the deep state dictatorship? Going back to the spoils system would be a good start. Managing the police, military, or legal system, which is what bureaucratic management properly is (Applying Principles, pp. 31-33), does not require an Ivy League education. Reducing the bureaucracy’s size to a tiny percentage of what it is today and selling all business-like governmental assets, such as the post office and all of the federally owned land (28% of the total acreage in the US) would go a long way toward reducing the national debt.

Drastically reducing the unelected bureaucracy would quickly reduce or eliminate the need for lobbyists and think tanks and might even send away those courtiers in the national media to look for honest jobs where they must actually report news based on facts and truth.

For about 130 years, the Progressives—in the name of  “democracy,” “helping the poor,” and “protecting competition”—have been marching us closer and closer to that “heaven” on earth they call socialism. Their recent behavior indicates either that they are desperate and on the precipice of failure (one can only hope!) or that they see an opportunity to steamroll their ideas on the rest of the country.

Deep state dictatorship must be defeated and removed.


* And are profit-making. I take laissez-faire capitalism to mean that there would also be no nonprofit organizations, as they are creatures of the state, the tax laws in particular. (All nonprofits today, to remain viable, must show an excess of donations over expenditures. Some are highly “profitable.”)

** Add about 16 million state and local employees, including public school teachers.

*** How many rules, regulations, and laws? Estimates, of course, vary, but I would put the minimum around 200,000. (In 2016, there were 3853 regulatory rules and 214 Congressional bills added to the Federal Register.) See my post on the “administrative state” (Applying Principles, pp. 81-83), as Philip Hamburger calls the deep state.

Do We Have to Die to Maintain Our Independent Psychologies?

Socrates was an independent personality in ancient Greece, much like the boy in Hans Christian Andersen’s tale of the Emperor’s New Clothes. Socrates said too many prominent citizens were scantily clad.

As a result, he was convicted by democratic vote in an Athenian court on charges of impiety and corruption of the youth. He was also then condemned to death by democratic vote.

Democracy, it would seem, killed Socrates, though some would say it was his obstinate insistence on remaining independent.

The question arises, must we die for our independence? Doesn’t life require compromise?

The concept of rights in Socrates’ time was extremely limited and applied only to Athenian citizens, which meant men. Women, children, slaves, and resident aliens were excluded.

Socrates was a citizen, so he was entitled to a trial. Plato’s dialogue Crito tells the story of Crito’s offer to finance Socrates’ escape into exile. Socrates rejects the offer. His argument is familiar still today.

Socrates said that it would be unjust for him to break the laws of Athens that he has agreed to obey. The citizens’ relation to the state, he said, is the same as that of a child to a parent or slave to a master. This is an appeal to the omnipotence of the state and an implicit social contract that binds citizens to the laws of the land.

The answer to Socrates comes from the modern tradition of individual rights as defined by John Locke and clarified by Ayn Rand, especially Rand’s principle that no one may initiate the use of physical force against anyone. This especially applies to governments to whom one’s rights have been delegated for protection.

This also means that if laws are unjust, by initiating force against citizens, retaliatory force in self-defense can be supported.

For example, it is morally just for a citizen to break an unjust law—provided one is willing to accept the consequences, as in civil disobedience, or is willing to live in exile, as occurred during the Vietnam War era when young men moved to Canada to avoid the military draft’s involuntary servitude. In extreme cases it is just to start a revolution, as occurred in Colonial America.

In contrast, blocking entry to a venue to prevent patrons from hearing a lecture is not civil disobedience. It is criminality.

Socrates should have gone into exile. The state is not our master and the social contract is only a metaphor, a bad one at that.*

Thus, we do not have to die for our independence. Nor do we have to compromise our principles or sell our souls to the devil to live and prosper.

We have no moral obligation to tell the truth when our privacy or other rights are being threatened. Living under a dictatorship with secret police and civilian informants is certainly initiated force. Surviving under such conditions where truth telling can result in jail or execution requires ingenuity. In the Soviet Union, some families resorted to speaking to each other in a foreign language to avoid being misunderstood by spies and snooping neighbors.

Even in a semi-free country as the United States where education is dominated by government-initiated coercion, encouraging students to “give teachers what they want” and then to study on their own to develop ideas that may not be acceptable to the government-controlled schools is just.

Free expression and free thought, contrary to pretensions otherwise, are not endorsed by our government citadels of reason. Ludwig von Mises (pp. 81-83) has taught us that academic freedom originated in European universities and today still means freedom to agree with the government.**

And Ayn Rand has taught us that “morality ends where a gun begins” so where the gun begins, we can lie our heads off. The issue is a practical one. If lying to a thief who demands our money could lead to harm or death, because the thief does not believe us, it would be unwise to practice the deceit.

The same applies to government initiators of coercion. Compromise of principles is unethical, but when under duress, as the Anglo-American legal system allows, self-defense becomes the guiding principle.

On the other hand, making concessions in a business negotiation is not a compromise of principles, because both parties have accepted the principle of trade. Nor is it a compromise to accompany one’s spouse to attend an opera, though you may not like opera. The mutually accepted principle is one of love and shared values.

Life does not require the compromise of principles. We compromise only in areas that involve moral options.

The challenge in living under duress, in a dictatorship or attending coercive government-controlled schools, is psychological. The challenge is to maintain one’s independence while putting on a front for protection. This means maintaining one’s conviction to understand thoroughly the facts of any given situation—or in a student’s case, the facts and truth of an assignment—while on the surface seemingly making concessions to the dictatorship or government school.***

Galileo recanted to the Inquisition, but did not sacrifice his scientific convictions. Faust, on the other hand, made a compact with the devil—and lost his soul.

Did democracy kill Socrates? Yes, but so also did his false premises about obedience to the state and what it means to remain independent.

In a truly free society that respects individual rights, democracy is not as powerful as it was in ancient Athens. Today, democracy is, or should be, relegated to procedural functions, such as selecting our leaders.


* Social contract was an attempt to explain the origin of the state, but it is a fiction. More likely, powerful nomadic tribes conquered the weaker ones to establish control, and later the settled farmers. The state holds the monopoly on the use of physical force. Its origin is in violence and coercion, not agreement. The aim of rights theory was and has always been to restrain and delimit government power. See Oppenheimer on the state’s origin and Hamburger on our current administrative threat.

** Some teachers, of course, are fair so this is a judgment call for students. If a teacher is fair, students should strongly express, argue, and defend their views. If a teacher punishes students for disagreement by giving lower grades, students must do what they have to do to survive.

*** The same advice applies to students attending private schools, as private schools also operate in the government’s coercive environment and must obey its regulations. Free speech, free expression, and academic freedom are rarities in academia today.

The Elites and the Underground: No Law vs. Rule of Law vs. Excessive Law

“Rule of law” is an unquestioned prerequisite today for any free society and growing economy. Unfortunately, there is too little rule of law for 80-95% of the world’s population and too much for the rest.

The former population are what Hernando de Soto calls “extralegal” poor who want and need to be able to join the middle classes and thrive in those segments of the developed world that are now a decided minority (1, 2).

The latter are the political and economic elites who live in varying degrees, depending on country, officially under the rule of law but are facing, year after year, increasing erosion of that protection with the growth of dictatorship by excessive law.

The extralegals, as de Soto’s research has found at his Institute for Liberty and Democracy in Lima, Peru, have no legal existence in most third-world countries. They have no titles to their property, no legal descriptions of its location and other public records, and therefore no way to accumulate and protect assets—also known as capital. Yet most of these productive and innovative black-market entrepreneurs want to join the rest of their societies and be just as prosperous as everyone else.

The problem is that most of the ruling elites don’t want them to prosper. The solution is property rights and the rule of law.