Classical Liberals have to Avoid the Nirvana Fallacy Too

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Several commenters vigorously disagree with my proposals to limit the influence of bureaucracy on the grounds that these solutions do not attack the roots of the problem and may create more bureaucrats. But many of my proposals would not expand bureaucracy. For instance, the REINS Act forces Congress to approve major rules. It will create no new bureaucrats by itself and would almost surely cut down on the work of agencies as they realize some of their proposals could not pass both houses. Putting independent executive agencies under Presidential control would not create any new bureaucrats either. And it could eliminate some bureaucrats who are responsible for coordinating the work of these independent satrapies.

More importantly, focusing simply on the number of bureaucrats in government is a mistaken way of thinking about the problem of bureaucracy for classical liberalism. Today the greatest cost to liberty from bureaucracy is a more intrusive and more left-wing government than people want. More bureaucrats, correctly placed and incentivized, can reduce these dangers. A case in point is OIRA—the unit within OMB that reviews regulations for their consistency with the President’s program and deploys cost benefit analysis. OIRA has prevented myriad intrusive and unjustified regulations from seeing the light of day. OIRA also has a far less parochial, empire-building culture than most agencies with a single mission. Although having OIRA means having more bureaucrats, OIRA has meant a net gain for liberty. Madison reminded us that the separation of powers can protect liberty, even if it multiplies the branches of government: “Ambition can counteract ambition.” The same can be true of internal checks within the bureaucracy. So it is also with permitting courts to review cost benefit analysis. Perhaps this review will require the employment of a few more judges and clerks. But they are going to be less captured by particular missions and less left-liberal on average than  agency bureaucrats. Court decisions based on their review will sometimes strike down agency regulations. Other regulations might never be issued because of their potential to be reversed sharply in court. Ultimately, fewer regulations could mean fewer bureaucrats in agencies.

Some commenters also objected that my proposals did not eliminate the root of the problem, which is the administrative state itself. But the administrative state is no longer a mere sprout, but a  towering redwood or set of redwoods.  For the foreseeable future, the administrative state must be pruned – it cannot uprooted – in order to reduce its burdens on liberty. It is a kind of nirvana fallacy to oppose such reform because it does not reinstate the paradise governed only by common law rules of tort, contract, and property.