Tuesday, March 6, 2012

Why Government Agencies and the Rule of Law are Incompatible

A thoughtful article by Richard Epstein on the incompatibility between rule of law and rule of bureaucrat. (H/t Instapundit). After describing the initial reason for establishing regulatory agencies, Mr. Epstein notes:

This shift in focus from controlling natural monopolies to creating statutory monopolies out of competitive industries places enormous stress on the rule of law. Why should particular favors be showered on some members of one industry, while denied to their rivals? Which occupations or trades should receive this special dispensation? Favoring one group and then another requires large administrative agencies to establish criteria by which the state selects successful applicants. It turns out, however, to be exceedingly difficult to offer specific rules of guidance in the ambitious undertaking of dispensing government favors. Administrative bodies thus continue to expand to achieve their particular ends.

* * *
The rule of law can only survive where there are rules that guide and limit government conduct. Seventeen-part tests are not rules. In many cases, they are not even intelligible standards. The reason why classical-liberal rules can comply with the rule of law is that the simplicity of their basic standards does not require public officials to have the massive amounts of delegated discretion of the kind routinely conferred on modern administrative agencies.
I would note that the truism, "the devil is in the details," nowhere applies more strongly than in legal and political questions. Rule by bureaucrat undermines republican government because elected representatives compromise on the large issues, but fail to address the "small" issues which, in the end, are actually the most significant. Instead, these decisions are delegated to an unelected and, largely, unaccountable bureaucracy. (By unaccountable, I mean that their continuing employment and power is not subject to control at the ballot box). And, being unaccountable, they can pursue an agenda that may deviate from, or even contradict, the will of the people. Also, by being unaccountable, high level bureaucrats are more easily captured by a particular business, industry, or other special interest group.

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