Robert Moldbug Kaus (1979)

Mickey Kaus is one of my favorite columnists.  I read Kausfiles for a decade before he left Slate to make a Quixotic run for the Senate in a bid to expand the Overton window with regards to immigration and the Brazilification of California.

In his latest post at the awesome Daily Caller, he links to an old article of his (preserved at unz.org, thanks Ron!) from the old Washington Monthly (where he was a staff editor) that he wrote as a young man of 28 just a few years out of Harvard Law School.  He was a Harvard undergrad as well, and his father Otto was a Viennese refugee from the Nazis who became a California Supreme Court Justice.

The article is notable for its description of the degraded condition of American ‘Democracy’, – already drowning in the thoroughly judicialized bureaucracy of the administrative state – and for its brief historical synopsis of how it got that way in only four decades.  Things didn’t get any better in the next three.  Read the whole thing, but here are some excerpts:

Founding Fathers’ handiwork. For what the lawyers are never bluntly told is that the experiment of adapting our Constitution to the politics of the New Deal has been a failure; it has given us a government that is inefficient, incompetent, and unpopular. It was a jerry-built system back in 1937, and each succeeding attempt to patch it up has only made things worse. For four
decades, it has polluted our concept of democracy, shackled our political imagination, and distracted our potential leaders.

… may be temporarily required),” but the judges weren’t fooled. They knew that the legislature was throwing up its hands and, in effect, saying to the president, as Ingrid Bergman would say a few years later, “you’ll have to do the thinking for both of us.” It didn’t take much imagination to see that this sort of wholesale delegation of lawmaking power didn’t fit very well into the traditional scheme of things. Here was the president, not only executing the laws, but writing them. Could he possibly supervise the process by which the codes were drawn up by the industry groups, or by his subordinates?

… Congress might transfer to bureaucrats themselves the power to issue binding rules, without even requiring the president’s signature. If so, what would happen to democracy, to the ideal that laws are legitimate because they are adopted by a majority of the people’s representatives? These were troubling questions …

… It was probably the last time that the Courts could afford to take seriously the idea that Congress actually votes on the rules that govern our society.

… Victory was assured in 1946 with the passage of the Administrative Procedure Act, granting the courts the
power of review over almost all significant agency decisions, and specifying full-blown trial-type procedures within the agencies for most of them.

Although it has rendered the administrative process unworkable to the point of crisis, decades of judicial intervention probably haven’t accomplished the goal of restoring public faith in the legitimacy of agency regulations. When he sees a federal judge block a highway that the Department of Transportation has approved, does the average citizen think, “Yes, the department may have failed to consider all the relevant factors, so the court had to remand the case for formal findings based on the whole rulemaking record”? Or does he think the judge probably thought the highway was ugly and should be stopped? Either way, does the citizen feel he has had any control over the decision by either the court or the agency? He would be a fool to do so, because he hasn’t. The problem with government-by-agency is that it is undemocratic.

My favorite is the recounting of the endless futile efforts by various administrations to organize, control, and coordinate the bureaucracy and bring its regulations under the scrutiny of cost-benefit analysis.  Sunstein likes to pretend (for example, in his latest book) he introduced the concept to the OMB, but Kaus shows it goes way back:

… hoops before issuing regulations. The added paperwork (Ribicoff s “regulatory impact analysis,” Kennedy’s “competitive impact analysis,” or Carter’s plain old “regulatory analysis)-like the “environmental impact statements” from which they descend-can be expected to have little effect aside from giving lawyers and judges another procedural stage to play around in, and increasing the business for the independent consulting firms that agencies regularly hire to perform the thankless task of providing the satisfactory boilerplate.

It’s humorous to observe that Kaus has been harping on the same theme of lawyers controlling the government to ensure the rigorous execution of the ‘lawyers full employment act’ for almost my whole life.  Like I said, RTWT.