Civil servants run the country

You’re probably familiar with the process by which a bill is introduced into Congress and then bill becomes a law – the legislative process outlined in the Constitution.

If you believe that this process still creates laws in any meaningful sense, you’re understanding of how laws are made is out-of-date by 70+ years. FDR did many things when he overthrew the old government. One of those was replacing the old legislative process with what we now know as the notice and comment “rulemaking” process.

Modern laws are called “regulations” or “rules” to maintain a veneer of Constitutionality. The Constitution requires laws to be made by Congress, so to get around that requirement, we’ve renamed laws. If you break a regulation or a rule, you’re still subject to punishment.

Wikipedia actually summarizes the process nicely, in the way that only Wikipedia can: “In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking.”

Note that the elected legislature has been shoved into the background. Someone decides that a new rule (not law, please) needs to be implemented. This “someone” can easily be – and generally is – the same agency that will implement the regulations. Often this someone actually writes the draft legislative language and gives it to Congressmen – hence the Congressmen can sponsor a law that he has never read. This legislation is vague and unclear enough to allow an agency to actually decide what the regulations should say. The legislative process is messy and subject to transparency requirements, so the details are best left to the bureaucracy and the rulemaking process.

The internet allows us to see a glimpse of how this process really works. Earlier this year, Congress decided to pass a law “protecting” airline passengers. What did Congress actually do? They asked the Department of Transportation to protect passengers. The Department of Transportation is now implementing that law. One of the DOT’s proposed rules to implement the legislation is here.

One way to get a glimpse of who’s really is charge is to go here and read the letter in pdf. First, notice that the letter is written to DOT by the very same Senators that passed the law. The Senators “believe consumers are entitled to full and honest disclosure of all fees and charges associated with air travel before they purchase a ticket, whether directly from an airline or from a third-party intermediary.”

If the Senators believed this, why didn’t they put it in the law? Isn’t that how democratic government is supposed to work?

That’s not how government works anymore. Now, if Senators want the law to do something, they need to beg civil servants to make it happen. Who is in charge here? I think it’s pretty clear.

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13 Responses to Civil servants run the country

  1. Executive order #1 of the Finbarr Administration:

    Whereas the president is constitutionally vested with executive authority, and whereas the Constitution supersedes any legislation passed by Congress, employees of the executive branch shall be considered employees at will and subordinate to the president, the agencies of the executive branch shall be subordinate to the president in the creation or removal of administrative rulings

    Executive Order #2: “Everyone who works for the Department of Education is hear by dismissed” Generous severance will be provided. Federal marshals have already locked the doors, your belongings are in a crate outside.

    Executive Order #3: “All bailout funds to Wall St. firms are hear by recalled. Firms unable to pay shall be considered in default and the government debt tranche will be promoted to an equity ownership tranche.”

    Executive Order #4:

    Where by the constitution prohibits an established state church, all government transfers to unitarian seminaries are here by frozen. All organizations that pay employees to write “policy recommendations” are here by considered political action agencies and therefore ineligible for non-profit tax exemption

    When you strike the king …

    • Foseti says:

      I particularly like #4. If you read some more comment letters at regulations.gov, you’ll see that the professoriate contributes a large number of comment letters. This phenomenon is not exactly easy to explain – comment letters don’t help one get tenure.

  2. Vladimir says:

    Plus, the “Chevron deference” legal doctrine, based on a SCOTUS precedent, officially gives the force of law to the interpretations of vague statues devised by the executive agencies.

  3. Jehu says:

    Yes, I too am in favor of a return to the old spoils system. It’s the only way you can actually have some accountability, since you can blame the man at the top for everything. I’m not even convinced it’d degrade the institutional competence of the government that much.

    • If you think about, a city political machine is essentially like a for profit corporation. The old plutocracy of 1900 may be fairly close to moldbug’s neocamerelism.

      That said, I wouldn’t actually want to return to the spoils system. The point of those executive orders would be to clean up the existing mess. By the end of the Finbarr term it would be time to put forth a new constitution that would promote competent, legitimate rule for the long term.

    • robert61 says:

      You don’t have to go back to the spoils system. Keep civil service exams but eliminate EEOC rules and you make a huge advance.

  4. Jehu says:

    Devin,
    If the bureaucracy can’t be effectively removed, it’ll reconstitute most of the existing problems in a generation or two. You have to make them extremely easy to remove–i.e., I don’t like your haircut, hasta la vista—total fire at will without even protected class provisions. The only system that has shown the ability to do that in the past is the spoils system.

  5. […] Do Not Understand Democracy“, “Half Sigma is Retarded About Value“, “Civil Servants Run the Country“, “Conceptions of […]

  6. […] don’t matter I have argued before that civil servants run the government. I can now prove that I am […]

  7. […] the bureaucracy will surely keep its privileges, and then some. They don’t monopolize power for nothing. I’m afraid that contrary to what The Economist and its banksta editors wish, […]

  8. […] and the government has the make some regulations about what processes are allowed. As Foseti will tell you, our laws aren’t made by our Parliaments but by the bureaucracy. But bureaucracy is about […]

  9. Erik says:

    The last link, to the letter, appear to be dying. Is http://www.regulations.gov/#!documentDetail;D=DOT-OST-2010-0140-2011;oldLink=false the correct replacement?

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