Politics & Policy

Kafkaesque Governance

Increasingly, the federal government relies on arbitrary decisions rather than actual laws.

After Edward Snowden started leaking the details of the National Security Agency’s covert spying program in June 2013, sales of George Orwell’s book 1984 spiked by over 6,000 percent. The reason? People saw the NSA’s metadata programs as an eerie parallel to the intrusive measures taken by Big Brother, the ubiquitous face of the government, in Orwell’s classic novel.

The burgeoning interest in 1984 was just one of innumerable examples in American political discourse of situations in which worried onlookers — especially conservatives — have turned to Orwell to explain and describe government overreach. (See Victor Davis Hanson’s piece “Obama’s Newspeak.”) Nonetheless, I cannot help feeling that the best parallel to our modern government is not 1984, but rather the terrifying, twisted world depicted in The Trial, Franz Kafka’s vision of modernity.

The surrealist author came of age working in the bureaucracy of a partially state-owned insurance group in Prague before the First World War. In The Trial, the plot follows Josef K., the CFO of a bank in some undisclosed city, through his arrest and trial. And yet, this is not a trial as we would think of it — there is no formal courtroom with a robed judge sitting on a raised bench, no bailiffs or court clerks. Rather, the story begins with this sentence: “Someone must have slandered Josef K., for one morning, without having done anything wrong, he was arrested.”  The arrest is not climactic or thrilling; it’s understated and ambiguous, as is the rest of The Trial: Josef is merely informed by plainclothes officers that, for undisclosed reasons, he is being arrested and prosecuted, but that he can continue with his everyday life.

This is only the beginning of The Trial’s bizarreness. Early on, Josef is summoned to a judicial examination, only to find that the courtroom is hidden, located inside a random apartment in a housing tenement. The same building holds miles of bureaucrats, all stuffed into a dimly lit, maze-like attic. As Josef struggles to fight the charges, he enlists an aged lawyer, who at one point tells him that the “gradations and ranks of the courts are infinite,” and that because of this bureaucratic structure, the judges he deals with are very low-ranking, and thus have almost no ability to sway the outcome. The trial is carried out in secret by the higher courts that neither Josef, his lawyer, nor the judges they interact with will ever see. Ultimately, his conviction is something of an anticlimax, having been preordained long ago by the impenetrable bureaucracy and the arbitrary arrest. (Spoiler Alert!) In truth, there is no trial; Josef pines wistfully for the “high court he’d never reached” as his execution is carried out.

By contrast, 1984 depicts a state rationally ordered to a severe degree. In a world obsessed with scientism, 1984 represents a logical conclusion: Winston Smith, Orwell’s protagonist, finds himself buffeted by powers well outside his control. It’s not that answers do not exist, it’s that Smith is not privy to them. One never gets the sense that the ever-shifting wars among Oceania, Eurasia, and Eastasia are arbitrary, or that the party slogans — War is Peace, 2 + 2 = 5, God is Power, etc. — are anything but the byproducts of a highly controlled and regimented society. The police state sees all, and it quickly, efficiently orders everyone to love it.

As regular observers of modern politics have witnessed, however, the U.S. government does not operate like Oceania. In reality, the government’s actions have increasingly tended toward the arbitrary, the endlessly bureaucratic, and the personally invasive — toward Kafka, not Orwell.

Time and time again, it is made clear that the federal government’s modus operandi is making it up as it goes along, willing to sacrifice debate and orderly judgment for the arbitrary interpretations of a small army of bureaucrats. Take the Affordable Care Act. When then–House Majority Leader Nancy Pelosi told reporters that “we have to pass the bill so that you can find out what is in it,” it was not a one-off comment. Then came the exemptions, and then more exemptions. Along the way, the Obama administration dealt in back rooms, fumbled on religious liberty, and “suspended indefinitely” the long-term-care program that was projected to bring in $86 billion over its first decade — helping supporters claim the ACA would be a budget-saver — before losing money indefinitely.

This administration’s incoherent approach to choosing which laws to enforce is not confined to health care. There are the waivers for No Child Left Behind, the decision to not enforce federal marijuana laws, and prolonged equivocating on immigration policy. For the sake of brevity, I won’t even mention the hodge-podge of exemptions and carve-outs, seemingly patched together at random, that passes as the tax code.

Perhaps the most salient example of this “make it up as we go along” phenomenon is the fiscal policy of the Bush and Obama administrations. Though classical Keynesianism had long been considered defunct by the economics profession, Keynesian economic policies were promptly revived as the nation descended into recession. Perhaps not coincidentally, the Keynesian model holds as central orthodoxy that the government should be responsible for plugging shortfalls in “aggregate demand,” with stimulative measures such as infrastructure spending and “temporary” government programs. The result was a pair of stimulus bills: President Bush’s $152 billion Economic Stimulus Act of 2008, and President Obama’s $840 billion American Recovery and Reinvestment Act (ARRA) of 2009.

There are two problems with this. First, Keynesianism is obsessed with the aggregate, so much so that its translation to actual policy requires extensive discretion and arbitrary credit-allocation decisions. For example, barely a third of the ARRA money was spent on tax cuts, despite a stack of literature suggesting that tax cuts are more effective at stimulating the economy than government spending. Then there was the Cash for Clunkers program, supposed to increase the demand for cars, which hurt the market share of U.S. auto firms and did little for the overall economy. Even more disconcerting was the decision to save and support some companies but not others, injecting capital into GM and Solyndra but not Tesla and Exxon. Such decisions are nakedly political, done to appease special interests rather than further the public good.

The second problem is that Keynesianism’s heavy-handed approach to direct intervention in the economy creates extensive uncertainty. The Obama administration’s activist stances on energy regulation, anti-trust policy, and marginal tax rates have all been cited as leading to increased uncertainty. It’s not just one side of the aisle, either: It was, after all, the Bush administration that first extended a bailout to GM and Chrysler. And who could forget the Republican-led government shutdown in 2013?

These decisions produce real-world effects. When politicians choose discretionary policies, investors withhold capital, consumers delay purchasing decisions, and managers prepare to fight litigation stemming from new regulations. According to some estimates, uncertainty cost the U.S. economy roughly $150 billion in 2011 alone.

At the beginning of The Trial, Josef K. tries to reason with his arresting officers by telling them, “I don’t know [the] Law.” One imagines that in the current era of discretion-driven government, nobody really does, and, even if someone did, it wouldn’t make much of a difference.

— Alex Entz is a recent graduate of Northwestern University. Originally from Iowa, he currently works in finance in Chicago. 

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