Classical Liberals have to Avoid the Nirvana Fallacy Too

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.

John O. McGinnis

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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Comments

  1. gabe says

    ” 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.”

    While SOME judges may be less ideological than SOME bureaucrats, this is not a certainty and while the nomination process for the Judiciary continues to be so political, one does not derive a sense of comfort from such a proposal.

    Moreover, the real point, as I see it, is this:
    Since when has it been the province of the Judiciary to weigh cost / benefits. It is, I assert, distinctly the province of the Legislature to make such analyses. Can a “watcher” be placed over or within the Executive agencies to review costs / benefits? – Yes!
    But to whom should we look for a decision on whether the ratio is proper? Clearly, this is the Legislature – that, in fact, is what they are elected to do.

    As to whether they have the moxie to do so – is an entirely different question but one that the people can react to when the decision is incompatible with the peoples “sentiments.
    Consider what Courts have done in various States in the area of education funding. In my state and in Missouri, among others, the courts have made their own cost benefit analyses that “supersedes” the Legislature’s analyses and have determined (MANDATED) that the Legislature must increase spending -a de facto (and in Missouri a de jure) increase in taxes upon the citizenry.

    One can also look to Court decisions / reasoning with various EPA mandates for similar situations.

    I think I will pass on this, thank you!

    take care
    gabe

  2. R Richard Schweitzer says

    “Today the greatest *cost* to (diminution of?) liberty **from bureaucracy** is a more intrusive and more left-wing government than people want. ”

    From another perspective, the “costs to” or diminution of liberty does ***not*** come ***from*** bureaucracy, but is a direct, observable and measurable result of the forces and actions that create bureaucracy in our political system.

    Of course, historically, bureaucracies, originated in despotisms as means of implementing imposed authority, with optimum limitations on the vulnerabilities of centralized power holding that authority.

    As noted before, the bureaucracies of our “open society” have come into being to undertake many functions resulting from the transfers of responsibilities and obligations, the seeking of benefits and amelioration of burdens, as well as relief from the complications of direct interpersonal relationships and resolution of conflicts of interest.

    Each and every such transfer is accompanied by a diminution of either freedom from or freedom to or both – the essential features of individual liberty. To be effective in its operations for the functions transferred to it, the specific bureaucracy must impinge, to some greater or lesser degree, upon either or both of those freedoms.

    That involves a “trade-off” similar to, but much more pervasive than, the current concerns between “privacy” and “security.”

    While no realist can expect that we can achieve a return to previous conditions of freedom from an freedom to by “clearcutting” or totally dismantling the bureaucratic structure of the Federal Administrative State, any realist must recognize that the extensive transfer of more and more functions to bureaucracies, and the necessary use by bureaucracies of the constitutionally delineated mechanisms of government to implement those functions, results in the rapidly approaching a point of fragmentation. This is immediately observable in the fiscal fractures of that mechanism, in the increasing “bureaucratic failures” (cited as “government failures”) such as regulatory dysfunctions, impedances, overreach, and inter-bureau conflicts.

    “We” want more in the way of benefits and amelioration of burdens from the mechanism of our federal government than the constitutional delineations of those mechanisms provide. Those delineations were established as, have been, the bulwark against erosions of freedoms. As “we” have ventured outside those delineations, seeking benefits and amelioration from burdens, that bulwark no longer shields those freedoms and they are diminished.

    • says

      RRS:

      I have noticed a thread in your thoughts that has me curious as to your thoughts. The concept of obligation is prominent in many of the issues that you address. If memory serves, you have defined justice, at least in part, as the performance of obligations. Here you identify the transfer of obligations as part of the mischief underlying problems of bureaucracy and “every such transfer is accompanied by a diminution of either freedom from or freedom to or both.”

      It thus seems as though the concept of obligations links your thought on justice, freedom, liberty, government, etc. I can imagine a naive and utopian premise, appealing to the gullible, that the relief of obligations is an element of freedom. Nancy Peolsi seemed to imply as much: get other people to subsidize your healthcare and you have the freedom to “pursue your dreams.”

      So my question to you, assuming that I have not misstated your views (please correct me if I have) is: are freedom and justice independent of each other, i.e. can burdens and obligations be shifted in the interest of liberty without affecting justice (including the perniciously vague “social justice”), and vice versa. Does the liberty of others create injustice?

      • R Richard Schweitzer says

        Reads as though you have studied the Ch’in empire.
        (that’s an impression, not sarcasm)

        your recollection is correct, my conclusion (so far) is that justice is the performance of obligations.

        “Obligations” seems to be the most comprehensive word in English to describe specific internal motivations of human conduct. The word can encompass commitments, responsibilities and duties. It also can encompass those concepts of “ought” and “should” as well as their negatives. Thus, obligations are movers of human conduct and constraints on human conduct. The tendency to use the word comes from 30 years of reading, making and collecting notations (probably about 2 Gigs, including scans of hand-written notes) for an objective of compiling an essay (in imitation of those of the Scottish Enlightenment) on the formation of what become morals in social orders.

        The word “justice” has been given many differing applications. Studying or examining its relationship to the accepted morals of a social order has so far led to an indication that the concept of justice developed anthropologically from the need of humans to predict one another’s conduct, particularly in their interactions, as they might affect one another. As a result, commonalities of expectations to support those predictions developed among members of social orders.

        The sufficient commonalities of recognized, accepted and agreed obligations in a social order appear to constitute the morality or morals of that social order.

        There follows on that the need for sufficient commonalities of the recognized and accepted means of performing or avoiding the performance of obligations, or resolving the conflicts in obligations, which commonalities become the ethics of a social order.

        There was an aphorism: “Justice in Thebes is not the justice of Athens.”

        It is difficult to construct a link between justice, as thus (so far) understood or comprehended with freedom to and freedom from which would constitute liberty in an open society. Anthropologically there has been no record of a “need” for those freedoms that matches the need for predictability of the conduct of fellow human beings.

        Prolix as that was, it may not be satisfactory.

      • says

        It is difficult to construct a link between justice, as thus (so far) understood or comprehended with freedom to and freedom from which would constitute liberty in an open society.

        This is where I think you do not give yourself enough credit. I suspect that the link is not as difficult as you let on, and in fact that link is what distinguishes an obligation from a compulsion.

        Chesterton said something to the effect, regarding wedding vows I think, that the fundamental liberty is the liberty to bind oneself, to assume obligations by the giving of one’s word. This type of affirmation of obligation is not only a mark of a civil society, but of a free one as well. It is to be contrasted with coerced compliance, a phenomenon not of obligation but of submission. A man is dignified in discharging an obligation; he is debased by succumbing to a threat.

        Liberty, it would seem is therefore necessary to obligation which is, in your formulation, the basis of justice.

        On another topic, I have to appreciate the quality of comments here, the absence of trolls, or emoting hysterics. Most everyone it seems appreciates that thought is preferred to snarkiness, and as a result, I can honestly say I have learned some things here.

        • gabe says

          To both Richard and Z:

          Thank you for the comments on obligation and justice. It is not something that i have previously considered in any depth. Both of you gentlemen are to be commended for the clarity and depth ot your comments.

          I, too, have learned something from this.

          And Z: I agree with you, Richard is being far too modest in this thread.

          thx again,
          take care
          gabe

  3. says

    The basic premise that there is a singular defect or class of defects that afflict bureaucracies is invalid. Bureaucracies have inherent limitations as well as particular drawbacks depending on how they are implemented. Limiting the mischief caused by congenital bureaucratic drawbacks inherently requires limitation of bureaucracies and bureaucratic powers.

    Bureaucracies, while sometimes necessary, age rather poorly and outlive their usefulness as a matter of course. The problems of bureaucracy are exacerbated by opportunistic downplaying of their limitations. These include:

    1. Bureaucracies have no inherent optimizing mechanism. Competition is a wonderful method of optimization, so wonderful in fact that it is what nature uses as the basis for evolution and adaptation. It is highly unlikely that bureaucratic performance will improve through attendance at taxpayer funded conferences and the guidance of theory-and-ideology addled “experts.” I have already presented my opinions regarding the inherent shortcomings of both bureaucracies and experts, and will not repeat them here unless someone is interested.

    2. A major problem with delegations to executive bureaucracies is the ambiguous understanding of whether de facto responsibility for oversight has also been delegated to the executive. When accountability becomes a political commodity, it will be primarily used politically, rather than as an an element of good government.

    3. Even in the absence of a delegation of legislative power, the political potential of bureaucratic mischief mitigates the assumed effectiveness of bureaucracies. The politicization of IRS determinations, approval process of the Keystone pipeline, attempts to monitor the political content of news media, etc. reference this fact.

    4. The politicization of oversight inevitably means less effective oversight, and less effective oversight leads to corruption. Corruption is a problem of bureaucracy.

    5. There is no clear cut distinction between proper and improper delegations of authority from the legislative to the executive branch. This is inherent and unavoidable, but the effect is magnified by inartful and sloppy language used to effect such delegations. “As the secretary shall determine” should not be part of any statute. The basic principle is that only the legislative branch should make public policy. Anything that purports to allow bureaucracies to make public policies should be void ab initio

    6. Because of the inherent limitations of bureaucracies, public and private, very few presumptions should favor the breadth of bureaucratic authority. One such example is that bureaucracies should not be presumed competent to determine the extent of their authority. No recognition of executive privilege should apply to authority delegated by the legislative branch. The unitary executive should be viewed as a shield protecting the Constitutional powers of the executive, not a sword with which to hack at the prerogatives of Congress. Judicial review should not presume that Congress intended to delegate anything that was not explicitly delegated.

    etc.

  4. gabe says

    ” A major problem with delegations to executive bureaucracies is the ambiguous understanding of whether de facto responsibility for oversight has also been delegated to the executive. When accountability becomes a political commodity, it will be primarily used politically, rather than as an an element of good government.”
    Priceless!!!
    One need only look at the I.G.” oversight” of the State Department, the IRS and the Justice Department (we all know the particular “-gates”) to recognize the truth of Z’s statement – and what a thorough oversight they have performed, Indeed!

    “As the secretary shall determine” should not be part of any statute.”
    On it’s face this phrase transfers “lawgiving” authority to our version of the philosopher kings – surely we must avoid this.

    Yet, it seems so facile to say this when one considers Richards comments that bureaucracies rise in response to a perceived need of the people. Yes, these needs may indeed have been manufactured by those seeking advantage, power, influence, etc. – yet the “need” does exist. The question then becomes what do we do to counter it? I often think that while the Right properly rails against Big Government it is destined to fail because it also fails to comprehend the depth of this “need” on the part of the citizenry.
    As argued in another piece in this weeks LLB by Josh Blackmun the citizenry want “cash benefits” over liberty. They also want all the services that Big Guv provides. Thus we see that “justice” has, for them, become a purely one-sided affair: “Whatever makes it easier for me is just” and the fullness and robustness of a concept of justice akin to that of which Richard speaks is lost on them.
    This makes for a difficult task for the rest of us!
    http://www.libertylawsite.org/2014/03/20/what-do-americans-voting-with-their-feet-prefer-better-public-services-or-more-cash/

  5. R Richard Schweitzer says

    Gabe,

    If “need” was the term used to indicate the forces for transfers of functions that generate bureaucracies, it was an error. The proper term should have been wants or desires.

  6. R Richard Schweitzer says

    Back to Z @ 19:27

    Sorry to be obtuse.
    Obligation(s), standing alone, may not be the *basis* of justice.
    They share a “process” of determining commonalities.
    Commonalities of obligations determine morals in a social order.
    Commonalities of expected (predictable) conduct determine justice in a social order.
    It is in the performance of obligations, not their existence, the the link occurs, and moral conduct is generally taken as just conduct.
    Perhaps that is one of the reasons it is so difficult to conceive of justice in the abstract.

    Liberty, if taken to be freedom from and freedom to, is not necessary to the validity or existence of obligation(s). Some obligations are imposed upon an individual (or group) by nature of circumstances or powers beyond their control. Individuals are often in a circumstance not of their making, forced to determine upon action, inaction or default, determining upon “ought,” or some other imperative, which may very well negate “freedom to.” Humans are not always “free to choose.”

  7. gabe says

    In short, then, are you saying that humans are not always (perhaps, often would be a better term) to choose freedom or liberty? Obligations have existed from time immemorial, almost exclusively imposed (contrary to Locke, etc) and have shaped or compelled human action and moral norms. To say that, man in society has been afforded liberty from the earliest stages of civilization is to deny the power of the forces impelling him to perform certain obligations.
    Yet, it may have been possible for some semblance of justice to obtain given a reasonable regime or leader. This also is a one-sided variety of justice – Cultural justice and is perhaps something that strict positivists would embrace.
    However, liberty can not be said to have been present or available to the mass of men. Skipping through centuries of historical change, we come to a point where the “compulsory” force has been lessened and the possibility for voluntary acceptance and performance of obligations is possible. In this we find a fuller and more robust “justice” in that it incorporates and supports both a “cultural” and an “individual” commitment to justice. In this, we find the stirrings of liberty – yet it can be argued that those “stirrings” were always present in the human imagination, that they are part of our DNA, however dormant they may have appeared to be until conditions ripened for their expression.
    I guess that is my conception / justification for “natural right” (liberty) without recourse to some “externality.”
    Perhaps, this is just an attempt to adapt my boyhood infatuation with Jefferson’s “equality principle” with a few more years of living – but it seems to make sense to me and avoids extreme rationalism / idealism and i think is not inconsistent with Richard or Z’s arguements.

    take care
    gabe

  8. R Richard Schweitzer says

    Gabe,

    As noted above, but not emphasized, the term obligations encompasses the concept of “ought” and “should,” more commonly thought of as the individual “sense of right and wrong” – shaping motivations and giving rise to the most pervasive form of internally felt obligation directing human conduct or its constraints (as well as the failures of its constraints). This can be taken as the Deontic, the Sense of Oughtness. There are other innate obligations to be observed, some of which are classified as “instincts,” such as the maternal instinct. There are the biological, to breathe, to eat, to quench thirst, etc., as well as critical avoidances. Those are probably not “imposed;” they come with the turf.

    So long as continuance of life is an objective (consciously or not) there is no freedom from those obligations and no freedom from their determining influence in human conduct.

    There does not seem to be a simple way of identifying clearly, or measuring the relative impact, of the various the source(s) of the formative factors of that “sense of right and wrong” in individuals. At any rate, in its individual forms, it seems to be as universal as the physical senses. However, just as some cannot see, some cannot taste, some cannot smell, some cannot feel, and some, in living, lose those physical senses, so too appears to be the fate of “the sense of right and wrong.”

    From that prologue, you may guess that the answer to your question is that there are factors which affect the human conduct in making choices which are perceived as freely made, but are in fact the result of more complex determinants.

  9. gabe says

    Richard:

    Agreed.

    i do not dispute that there are some innate “obligations” arising from our nature such as parental love, kinship, etc. They, too, may be said to be imposed; however, the imposition is not, in that sense, an externality but rather an internal (perhaps genetic one) and in that it differs from the societal – no, better yet, political obligation(s) imposed by a culture / leader.
    It was to those societal ones that I referred. It is the latter obligations which I believe over time have become more voluntary than compelled.

    But, yes, there are many things which we fancy “choice” that are in fact not!

    Anyway, thank you for your clarification. I am the better for having read them.
    One old soldier to another!

    take care
    gabe

  10. says

    I don’t want to send this discussion off in too many directions, so let me just finish with a few thoughts.

    The obligations that implicate liberty and justice are not those that are compelled by biology, social psychology or familial affections. Constitutional government is not a requirement of human life, nor of perpetuation of the species. The state of nature is stateless, but this does not mean that states and governments cannot positively affect human experience. Nor should we ignore the possibility that they could have negative effects as well.

    The obligations referred to here are those that free persons willingly undertake for collective benefit. Madison noted that, “if men were angels, no government would be necessary,” but not because angels have no obligations. Angels are presumably better at observing them. If the obligations of communal living were universally discharged, no government would be necessary, and liberty would flourish in those innumerable venues where no burden is imposed on one’s neighbors. The voluntary discharge of obligations is therefore a condition of liberty within a society. In such a case it is possible to speak in terms of justice as intrinsic to this respect for the dignity of others (the “oughts” in Richard’s parlance) and organic cooperation that is not limited by the natural aversion to being bullied.

    When obligations are shirked, fobbed off on the new guy, or relinquished to the state, imposed duties are substituted. Good behavior is not produced by good character in observance of the obligations that such entails, it is coerced by force. Force will fill the vacuum, brutishly, stupidly and corrosively. “Oughts” become “musts.” Liberty is strangled, because it is incompatible with coercion. Eventually the state has no room for angels, and then must start anew.

    • R Richard Schweitzer says

      “The obligations referred to here are those that free persons willingly undertake for **collective** benefit.”

      If “here” refers to your immediate post, that is one case; but, it is not the case I was trying to deal with.

      • says

        No, I was referring to the context of my post. I am not trying to restate what I believe to be your view; I am simply investigating where your premises about justice, obligation and liberty might lead. I actually waffled over the word “collective” because of its aversive association with what I regard as destructive doctrines. I considered “societal,” “common,” “social,” and a few others but thought “collective” more fundamental. The premise is that there are many concepts, e.g. rights, privacy, justice, money and liberty, that presuppose the interaction of an individual with at least one other human being. One way to deal with them is a Natural Law cutting of the Gordian knot. But not everyone buys Natural law.

  11. gabe says

    Z:

    I must say that i am really enjoying this particular thread (even if my Walla Walla Valley Cabernet may get the better of me) with you and Richard. excellent and quite beneficial to me. Let me attempt to clarify my comments ( and perhaps some of Richards as well although I do not presume to speak for him but only try to relate my understanding as that is what I was commenting on).

    (1) “The obligations that implicate liberty and justice are not those that are compelled by biology, social psychology or familial affections”. (2) “Constitutional government is not a requirement of human life, nor of perpetuation of the species.”

    I certainly agree with you that # 2 is correct and true. Perpetuation of the species does not require constitutional government – nor for that matter, any government at all. However, I think you would concede that government does , in a real sense, make it somewhat easier for mankind to flourish (let’s forget Obama and his minions for a moment) and that Constitutional government makes it easier still – or as Richard so aptly observes makes it more predictable. to my mind, the two, i.e., easier and predictable are inextricably bound.

    I do not believe that Richard nor I are asserting that “The obligations that implicate liberty and justice” are compelled by biology or DNA. Rather, I think that we are saying that of the total spectrum of obligations some are indeed compelled by biology or DNA. Those are the obligations associated with parenthood (yes, not always present in the sociopath), kinship, relational / associational needs. these are innate within the species and to the extent that some of the early theorists predicated their social contract theories upon these foundations, your point has some merit.
    However, what i was trying to say was that there are some obligations that are “individual or familial” that are innate ( again, absent psychopathy) and that these would be present with or without a society. Goodness, chimpanzees exhibit this behavior (no, I am not being sarcastic as i do truly appreciate your thinking) as do humans.
    No, I think Richard was seeking to clarify my comments (and rightly so) regarding those obligations that are “compulsory” and do not truly represent choice. As I indicated these are distinct from those “societal” or ” cultural” obligations that I believe were originally consented to only as the result of “force majeure” but later, as historical conditions ripened, agreed to voluntarily by members of the society.
    To my mind, this represents progress, and consistent (I think) with Richards thesis represents a quantum leap in human development. To my mind, this is a fuller expression of human liberty and justice in that it accommodates both the societal and individual commitment to obligation.
    I do not believe that justice is present when it is compelled.

    Hope the excellent Cabernet has not sullied these comments.

    Take care, Z, I truly enjoy your commentary.

    gabe

    • says

      Gabe,

      Not to belabor the point, but I take as a given the various types of instincts, conditioned reflexes, emotional imperatives, rationalizations and psychological quirks that affect human behavior. I distinguish these from the obligations that affect civic life (such as respecting the privacy of another person or accommodating the grief of a neighbor after a death in the family, or helping a stranger who collapses on the street, or delivering meals on Thanksgiving). I have a reason for doing so, and that is I anticipate an attack on what are institutions of obligation; those institutions that we form and sustain to discharge the class of obligations I am referring to. The most obvious example is charitable organizations. Others are service organizations like the Elks, Shriners, or Salvation Army. Also churches. There seems to be a concerted effort to marginalize these in deference to the government Leviathan (disregard matters of conscience in political mandates and prohibitions, limit tax deductions for charitable contributions, subject organizations to harassment and scorn if they do not pass politically correct litmus tests). I anticipate the need to argue that denigrating the institutions of obligation, freely formed and sustained, is detrimental to society in general and liberty in particular.

      • gabe says

        Z:

        We are in agreement with respect to the mischief perpetrated by government on the institutions of obligation.
        I also agree that some notion of Natural Rights is required to counter the positivists view that rights are derived solely from statute and tradition and have frequently argued that here and on other sites.
        My feeble attempt earlier to advance a concept of Natural Rights not based upon an “externality” was advanced to distinguish between, and justify, those obligations that were imposed and those that were voluntarily embarked upon. In so doing, I hoped to show that while the aspiration toward voluntary obligation is always present in man, historical circumstances may prevent man from voluntarily engaging such obligations.

        anyway
        take care
        gabe

  12. R Richard Schweitzer says

    For those interested in expanding their information on the concept of “Obligations,” the writings of the Scottish Enlightenment By Henry Home, Adam Ferguson, Adam Smith, Hume (?to some extent) and others before and after, seem to have used the term Duty or Duties to embrace that concept. However, in some of the writings the references to duty would appear to be used in the sense of simply one form of obligation, often arising out of particular relationships.

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