In apparent contravention of the
Constitution's designation of Congress as the lawmaker, it has become
common for our representatives to hand a rough outline of their
wishes to the bureaucrats to flesh out. It's less time-consuming for
Congress to leave the details to someone else. So the rules and
regulations that control our lives are written by non-elected but
tenured civil servants whose ideas become enforceable law. “The
Free Dictionary” (on line) includes the following definition of a
regulation – but remember that regulations, though issued as they
indicate, “by various federal
government departments and agencies to carry out the intent of
legislation enacted by Congress,”
are written by government functionaries and have “the
force of law” even
though Congress may never review them.
A rule of order having the force of
law, prescribed by a superior or competent authority, relating to the
actions of those under the authority's control.
Regulations are issued by various
federal government departments and agencies to carry out the intent
of legislation enacted by Congress. Administrative agencies, often
called "the bureaucracy," perform a number of different
government functions, including rule making. (Emphasis
in original)
For
example I can illustrate some of the silliness with tidbits taken
from Philip Howard's book, “The Rule of Nobody.” They're
only a sample because, sadly, the rules cited are only a minute
sample of the idiocy that fills the manuals of those who run our
lives. This is only a tiny sampling of the regulations that have
been set for the evaluation of almost everything that we do. There
are regulations for everything, and we're responsible for doing
whatever they say. Logic is irrelevant and these regulations may not
seem to make sense, but so what.
In 2011, the Community Soup Kitchen,
New Jersey, was told that it must shut down its meal service. No
official actually decided that there was anything wrong with the
kitchen. For twenty-six years it had served upwards of three hundred
meals per day to the elderly and needy, without incident. Members of
various church congregations made food in their homes and provided
countless grateful people with a potluck meal. That was the problem:
New Jersey law requires that all food-service establishments must
have their kitchens inspected, and doesn't have a provision exempting
potluck meals. The health department couldn't inspect the kitchens
of all the contributors, including parishioners from three dozen
churches so officials felt they had no choice but to order the pantry
shut down.
In 2011 the Colorado proposed new
rules for day care centers. [They would be required to provide]
“at least two (2) sets of blocks with a minimum of ten (10) per
set” … Do regulators expect day care workers to count the blocks
each morning? [You can be sure inspectors would.] … After
public outcry, the rules were put on a back burner for further
consideration [rather than immediately added] to the
thirty-seven [37] pages of regulatory fine print that already exist,
including that … “the light must be dim at nap time to provide an
atmosphere conducive to sleep.”
Kansas code … There shall be no more
than 14 hours time between a substantial evening meal and breakfast
the following day. Which means that if someone eats dinner at 4
PM (s)he must be awakened at 6 AM for breakfast or there is a
punishable violation by the nursing home.
Also in the Kansas code The nursing
facility shall employ activities personnel at a weekly minimum
average of .09 hours per resident per day. And Kansas must
employ supervisors with mathematical skills.
One restaurant owner in New York was
fined because the cheese patties next to the griddle [to be
cooked in cheeseburgers] were 45 degrees not the required 41
degrees.
Government is filled with … stories
of distortion of public goals to satisfy bureaucratic metrics – for
example the end-of-year practice of agencies to go on a spending
spree on unnecessary projects so that Congress doesn't cut their
budget the following year.
A seventh grade girl in Indiana was
suspended for a week in 2010, even though she immediately gave back a
pill (for attention deficit disorder) that a friend had put in her
hand. The principal said that he had no choice, since she
technically had “possession” for a few seconds. Indiana
has “zero tolerance rules.” He was playing by the book. It's
less clear who wrote the book.
Another
rule: Windowsill height shall not exceed three feet above
the floor for at least ½ of the total window area. That's a
clear indication of compliance. Don't mess with the inspectors.
(See also: http://theeconomiccollapseblog.com/archives/suffocated-by-red-tape-12-ridiculous-regulations-that-are-almost-too-bizarre-to-believe)
Binary
rules like these are innumerable, and there can be no overstating the
harm they cause. Their existence allows action without thought.
Perhaps at one time some of them made sense, and the rules provided
guidelines for action and for the evaluation of the actions
performed. But it is unlikely that they ever made sense as
“hard-and-fast” limiting criteria for the evaluation of any
program. Yet they have become the points of reference by which our
acts are judged. (The inspectors view this as following the letter
of the law.)
It
is no longer necessary to determine whether any particular action is
logical – whether or not it is appropriate under the circumstances.
Either it fits the previously prescribed criteria or it doesn't.
Almost everything that we do has been reduced to components that are
either “right” or “wrong.” And those that are “wrong”
are not permissible. If an inspector (or, as I will indicate below,
anyone else), who doesn't need to really understand what he is
evaluating, views any item on his checklist as unfulfilled or
improperly fulfilled, the project can, and probably will, be
rejected. It's bullying. The need for the project is irrelevant.
Whether or not the goals set out are met doesn't matter. And the
bureaucrats don't have to go through the tedious job of choosing
inspectors who know or care about whatever they are evaluating.
The
ability to judge – to find that all the rules have or haven't been
followed – provides an industry by itself. When a documented
failure to meet criteria exists there is opportunity supplement
income by certifying the those criteria have, indeed, been met.
It simply takes the joint agreement of the inspector and the
inspected, however that agreement is met, in order to find compliance
with the rules. We read all too frequently of such situations, with
inspectors certifying compliance when it doesn't exist. And they may
be more sensitive to real or imagined infractions when outsiders –
lobbyists or others – convince them that such a determination will
be in their interests.
Who
benefits from these regulations? Ideally the public, but because
they can be abused, and because they are
abused, they often work to the detriment of the public. A lobbyist
who gets a rule written that only the company he represents can
follow may eventually be the cause of great expense to his
competitors and the people they employ and serve. And those who know
what the rules are can often find ways around them . Lawyers may
specialize in determining what you can get away with legally.
It's
often the case that laws, and the rules and regulations that flesh
them out, have superseded common sense, substituting thoughtlessness
and profit for useful concepts. They have substituted rules for
common sense. But from where did they arise? There are, of course
legal precedents that are followed irrespective of their
appropriateness. But the rules? They come from representatives who
have not thought through the implications of what they propose –
what they mean in the “real world” and “on the ground”
situations. They come from those who would benefit from the rules
and have enough influence to have them imposed. They come from
bureaucrats and other public “servants” – often long dead –
who once justified, or do now, their existence and salaries by
writing rules. And the often included their own biases and
preferences in them. And the rules, once enacted, became the
enforceable law of the land.
And
the laws and regulations can be used as excuses to delay or derail
important projects. All you need is an experienced lawyer who can
find some deviation from a rule written long ago for another reason
or which had no use even then. Or institute a law suit that has no
real basis.
Can
anything be done? Maybe. At least for some things.
It's
not plausible that there will be a change in all laws and
regulations. Certainly not all at once. Ideally there might be some
kind of citizen panel to review them – perhaps one containing
“experts” in the law and in the field being evaluated. Of course
it would require some kind of agreement as to how such a might be
selected, but sooner or later we have to come to grips with the
dilemma of such choices. And the expense of the panels should not be
overlooked. But if the number of rules and inspectors can be reduced
it may be economically beneficial. Right now we're having trouble
with other choices. Too political, and the two parties have
difficulty with compromises, but that's a separate issue.
The
same mechanism should be available when it is believed that a project
is being stalled or canceled without good reason. A panel should be
established to make such a determination. Some fear that a panel
like that will lack the expertise to make a reasoned decision, but we
trust juries in cases of life and death. Surely we can trust our
fellow to decide that a nursing home should be licensed even if the
windowsill is an inch high. We should be controlling the rules.
They should not be controlling us.
Similarly
State and Federal laws should be reviewed for applicability in the
twenty-first century. Thomas Jefferson believed that the
Constitution should be reviewed every twenty years or so – that one
generation should not be bound by the laws of a previous generation.
Perhaps his view was extreme, but the time comes when the past has
passed, and we should update it. It's not an easy proposition and
will require a lot of planning, but now is the time to start. The
common sense we should have is not that of the eighteenth century.
December 14, 2016