A government of laws, and not of men

Early this week, the Boston Globe reported on the nightmare a New Hampshire retailer experienced when he caught the attention of federal bureaucrats. He imported several seemingly innocuous items that, unbeknownst to him, required a permit. The items were lawful and could be imported. But, because he didn’t do all the paperwork he had no reason to know he needed, bureaucrats disrupted his business for months and cost him thousands of dollars.

As I explained in an earlier post,

This story is, sadly, all too common today. It highlights three fundamental problems with the power that countless federal bureaucrats wield over all of us: (1) “Ignorance of the law” has been perverted into a means of punishing us at random for innocent acts that we had no reason to think might violate a regulation; (2) Bureaucrats grossly overreact when you fail to fill out the paper work that you have no idea you might need and they make little effort to advertise; and (3) The most important factor in determining whether the government will punish you and how severely is which bureaucrat happens to be reviewing your case.

I addressed the first two points in other posts this week. This one will focus on the final point.

The New Hampshire retailer’s nightmare finally ended when his luck turned and a reasonable bureaucrat was put in charge of his case. Although good news for the retailer, this welcome result highlights precisely why the modern administrative state is a major threat to the rule of law.

The rule of law is one of the most important values for any legal system. John Adams famously summed the principle up as “a government of laws, and not of men.” The idea is simple—we should be governed by laws, announced beforehand and consistently applied, not the arbitrary whim of someone with power over us.

Unfortunately, the modern administrative state inevitably leads to the latter. Anytime you have hundreds of thousands of bureaucrats enforcing tens of thousands of broad and vague regulations that impose the harshest of punishments, while also receiving near limitless deference from the only possible check on their abuse (the courts), it couldn’t be otherwise.

That’s not to say that these bureaucrats are universally, or even generally, bad people. Through my work, I’ve made friendships with many of them. Most bureaucrats are perfectly nice, reasonable people.

The problem is with the nature of the administrative state. It gives unelected bureaucrats unspeakable power, with no requirement that they wield it consistently. What’s worse, the bureaucrats are given extensive protections to make it extremely difficult for them to be fired by the political appointees who allegedly oversee them.

We see this in the wake of the election, in the many stories questioning whether these so-called civil servants will revolt against the incoming president. That should be concerning, even if you think Trump’s environmental policies (whatever they are) are dreadful. If legitimate government power can only come from the consent of the governed, these people don’t have it.

Yet, in our government of bureaucrats, not of laws, they may threaten us, fine us, and throw us in jail for perfectly ordinary and apparently innocent acts. And all we can do is hope that we have the good fortune to escape scrutiny or at least have a reasonable bureaucrat assigned to our cases.