Bench Memos

Rules Are Not the Problem; People Are

Last month, The Atlantic featured an essay by Philip K. Howard with suggestions about how to fix the broken federal bureaucracy. Howard thinks that the way to fix government at the most fundamental level is to replace specific legal rules with general legal principles:

What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?

Howard’s argument is superficially attractive. He correctly identifies the red-tape complexity of regulations as a source of wasted effort and irrationality. He also proposes commonsense-type reforms, ranging from reducing the number of regulations to scaling back rules that eliminate accountability for government incompetence.

But he doesn’t recommend that regulatory powers be scaled back; just that detailed laws be replaced by principles that would, in his view, foster responsibility and good judgment. This is problematic.

First of all, without scaling back government power, broad legal principles don’t really provide any certainty about what conduct is proscribed or required. Granting power with the charge “do the right thing” is necessarily a vast grant of authority with little to no corresponding information about how it would be exercised. This gives the government maximum authority, but without properly informing its potential targets how to avoid punishment.

For that reason, the proposal is anti-legal. As Blackstone observed hundreds of years ago, “[a] bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never properly be a law.” Sure, discretionary enforcement isn’t nearly as bad as Caligula publishing laws printed in small type and posting them too high for the public to read, but hopefully America has higher constitutional standards than the Roman Emperor who appointed his horse to be a priest.

Howard nevertheless thinks that principles would be more just than legal rules:

Principles, ironically, are less susceptible to abuse of state power and gamesmanship than precise rules. One of the many paradoxes of “clear law” is that no one can comply with thousands of rules. With principles, a citizen can stand his ground to an unreasonable demand and have a good chance of being supported up the chain of authority.

Seriously? Why would we expect an indeterminate legal “principle” to protect citizens more than a legal “rule?” Legal theorists consider principles to be less determinate, and therefore more susceptible to manipulation, than rules. The Administrative Procedure Act and the Chevron doctrines specifically enable the government to prevail unjustly, forbidding courts from second-guessing agency mistakes as long as they comport with broad principles, i.e., not arbitrary and capricious, an abuse of discretion, or otherwise illegal. In other words: The government wins as long as it wasn’t totally irrational.

Howard tries to deal with the obvious problems that would result from unleashing the government. In Howard’s view, the law is just holding back all the good work it wants to do:

But what about human error and venality? Does law based on principles mean we must trust people? Of course not. That’s why accountability is still important. Moreover, for important decisions, a structure can require approval of several people. Nothing can get done sensibly or fairly, however, until we reconstruct government with a legal framework which liberates people to roll up their sleeves and make things happen.

No doubt that there are many government employees who use their powers wisely. But why does Howard think that an approval structure eliminates the accountability problems? Just look at how agencies circle their bureaucratic wagons in a scandal no matter who is in power. For Howard’s argument to work, the “chain of authority” would have to be invariably concerned with “doing the right thing” more than defending its budget, reputation, employee headcount, access, power, and privileges. Good luck with that.

Second, Howard doesn’t seem to know how accountability works under the Constitution. One of his opening arguments is this:

Responsibility is nowhere in modern government. Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.

Truly strange. As any high-school civics lesson would show, the president is responsible for bad management decisions and shares responsibility with Congress for the rest. All of these officials are democratically accountable. It’s not that they aren’t responsible; it’s that voters don’t hold them responsible. If you don’t like how the government is being run (and there is much to dislike), then either change the law, policy, or the officials themselves. In other words, participate in democracy.

Jonathan Keim — Jonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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