Friday, May 29, 2015

Is administrative law unlawful?

The U.S. Supreme Court has approved Congressional delegation of rule-making to agencies such as the EPA, FCC, FDA, FDIC, U.S. Army Corps of Engineers, and IRS, but the rationale is looking tired and overextended as government agents separated by layers of bureaucracy enforce regulations that are loosely based upon the statutes.  Just as often, the agencies enforce "guidelines" they draft as standards for ambiguous statutes and regulations.  Is it reaching a point at which the very nature and power of an administrative agency violates the citizen's right to due process of law?

Philip Hamburger has written extensively on this topic:

Is Administrative Law Unlawful?

Deference to Administrative Interpretation: The Unasked Questions

From Paternalism to Maternalism sans Maternity

In 1966, the University of Georgia defeated the University of Florida in their annual football game in Jacksonville, and a friend of mine attended the game as a member of the Georgia Redcoat Marching Band.  When they returned to campus still jubilant after the long drive home to Athens, they had to telephone the dorm mistress to be let in the door.  In those days, if you came in late without excuse, there was an inquiry and possible consequences.

The practice of in loco parentis died on campus in the late 1960s and early 1970s due to court decisions determining that the students were adults and from the competition of colleges to have as few rules as possible.  Students in dormitories now largely govern themselves, for better and for worse.

Now we have bureaucratic nannies running campus life, and before long we might be looking for sweet old dorm mistresses to replace the residential life "experts" and their codes of conduct.

We used to presume that young women on college campuses (and to a lesser extent, young men) needed protection, and we of my baby-boomer generation were happy to get rid of any, if not all, rules.  If we won the battle, we likely still lost the war.  Campus administrators outnumber the teaching faculty on campus, and they are bringing back a perverted form of PC maternalism to replace the Victorian paternalism of yesterday.

The campus is becoming the most regulated place in America, and the students and faculty have little or no due process.  Free speech is cordoned off to some corner of the quad or student union.  See  "On Trigger Warnings" as published by the American Association of University Professors.

Do we have enough competent people to staff our bureaucracies? (part ii)

The answer based upon experience is no.  Whether you are dealing with health insurance, Social Security, environmental regulations, taxation, airport security, veterans' benefits, banks, or utilities, you find that nine of ten bureaucrats are paid to say no, most are reluctant to tell you who is paid to say yes, and many have no business serving the public.

Could we find an adequate workforce to staff all our bureaucracies?  No.  The regulatory state on all levels has made it virtually impossible for more than a few people to understand the technicalities of many regulated activities, and there will always be a shortage of public servants and customer-service personnel capable of explaining technicalities to the demos.  The American people will never pay to train and maintain such a force, and political correctness and cronyism will continue to poison bureaucracies public and private for the foreseeable future.

The incompetence of bureaucracy to govern in place of understandable and accessible laws is not merely a "conservative" issue, but it goes to the heart of the progressive promise of good government as Philip K. Howard discusses in:

Fixing Broken Government: Put Humans in Charge and
The Rule of Nobody: Saving America from Dead Laws and Broken Government.

Philip Hamburger takes the challenge further: Is Administrative Law Unlawful?  The book is reviewed here in the WSJ.

How to evict and to be evicted in Alabama...

Most renters cannot afford counsel if they are being evicted.  Here is a short summary of Alabama law for landlords and tenants:

How to evict and how to be evicted... and other things you might want to know.