Common Sense – Part 2

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