The Administrative Branch

We don't elect an administrative branch. According to the Constitution, we don't even have one. Unfortunately, it's very real.

I recently listened to lecture 9 of Hillsdale College’s current Constitution 101 class, “The Administrative State Today.” [You can register for all of Hillsdale’s online classes for free and go through them at your leisure.] Sometimes what you get from studying is discouragement. The lecture is a description of the changes in the way government is run, spread over the 20^th Century, resulting in something today that has very little resemblance to what our founders set up.

Kevin Portteus, associate professor of politics, Hillsdale College
screen shot from Lecture 9

First, in the “progressive” era, under Teddy Roosevelt and Woodrow Wilson, there was a move toward “expert” control. The legislative branch would make vague, outcome-based legislation—for example, we want clean water. Without defining that or creating rules governing water use, there was no way to ensure the outcome. So agencies were created to see to it; experts were hired, who would determine, supposedly through the best scientific knowledge of the day, to measure, make rules, and enforce them.

Already, there were some real differences between what the founders intended and how laws were being enacted. If law was to be detailed and specific to localized businesses or even segments of the population, it wasn’t supposed to come under the purview of the federal government in the first place. Laws were intended for the specific purpose of protecting life, liberty, and property of all the people. Suddenly you have some entity coming in and saying, “We don’t like how you’re doing your work or using your property, so we’re going to delineate exactly what you can do and how.”

These agencies took on a great deal of authority. The agency decided what the law was. The agency decided who was worth examining for violations of the law. The agency then investigated, prosecuted, and punished violators. They were suddenly doing the jobs of the legislative, judicial, and executive branches—and those branches seemed to cede the authority to them without much argument. Courts and legislators alike would say things like, “They’re the experts, so we won’t question their judgment in the matter.”

This was all very much in keeping with the “progressive” way of governing—with the assumption that the modern world required an evolved approach, because life was suddenly so much more complicated.

But this wasn’t enough for FDR. He saw that the regulatory agencies were headed by “experts” who had been appointed from previous administrations, and they might not have in mind the same political outcomes that he wanted. So he pushed for reforms that empowered his executive office. By executive order, he could appoint leadership of the agencies who aligned with his political intentions.

In addition, he pressed for more ways to control the agencies and their direction. One way was to go directly to the people, to recruit them to his goals, which he did using media—the first president to so use it.

And after FDR, more methods developed in a game of power between a strong executive individual and strong regulatory agencies. In this balancing act came the granting of standing to more groups. It used to be that a litigant had to show that it had been personally harmed; the change allowed groups to claim that they represented the people as a whole. It the abstract I don’t find a problem with that. But in practice, it granted groups, for example, environmental activists, to claim that they represented all Americans when claiming that we are all harmed by some practice.

Lecturer Kevin Portteus, gives the example of Massachusetts v. EPA:

the case that declared that carbon dioxide—carbon—was a pollutant that could be regulated by the Environmental Protection Agency, and that the Environmental Protection Agency had better get busy regulating it.  The lawsuit against the EPA was filed by a number of environmental organizations and by several attorneys general in the various states: ergo Massachusetts v. EPA. Under the traditional definition of standing, it is hard to see how any of them would have been able to bring suit.  They would have lacked standing. The State of Massachusetts would not have been able, in all likelihood, to demonstrate the direct harm necessary to be able to bring a case before a court in the United States.

If you’re like me, you might have noticed how suddenly talk about regulating poisons such as carbon monoxide suddenly changed to the dangers of carbon dioxide, which is what we exhale, and plants “breathe in,” and that is pretty much part of all life on earth. And suddenly experts are telling us how much is allowed in our environment.

One purpose of the lawsuits from these groups, against the agencies, was to pressure the agencies to comply with political, typically liberal, ends. In other words, it was no longer about what experts in the science decided to lay down as the law; it was what a particular president’s experts said, using their science, to control entire industries the way he wanted.

Over time, there began to be quite a lot of collusion between politicians, regulatory agencies, unions, and corporations, to meet in back rooms and hammer out deals that were in their best interests—regardless of what the best interests of the public as a whole might be. This was termed “liberal corporatism” by Chicago sociologist Robert Flax in 1964. A ruling power elite had come to control policy, with very little input from us self-governing American citizens.

There’s always danger to freedom when the American citizens have their Constitutional powers usurped. Portteus quotes Charles Reisch, from his 1970 book The Greening of America:

The tendency of administration, while it may appear to be benign and peaceful, as opposed to the turbulence of conflict, is actually violent. For the very idea of imposed order is violent. It demands compliance. Nothing less than compliance. And it must obtain compliance, by persuasion or management if possible, by repression if necessary. It is convinced that it has the best way, and that all other ways are wrong. It cannot understand those who do not accept the rightness of its view. Administration wants the best for everybody, and all that it asks is that individuals conform their lives to the framework established by the state."

We can see that today with something as basic as making decisions about where our children go to school. Incidentally, Glenn Beck’s latest book, just out, is called Conform, and relates to the imposition of Common Core in our schools.

We’re not going the right direction. Portteus says,

The Obama administration has more faith in expertise than probably any administration since Lyndon Johnson. And Obama’s old Office of Management and Budget director Peter Orszag said, “You know what the problem with our system today is, is that we don’t put enough power in the hands of the experts: we leave too much up to the people.”

At this point in our nation’s history, says Portteus,

Policymaking has very little to do with what you learned in high school civics. The old framework of, well, the legislature makes the laws and the executive enforces them and the judiciary rule on cases, that’s really been scrambled. We get very hung up today on the expansion of government power and of course that is a real problem from the founders’ perspective. But the way in which the functions of government have been reshuffled among the various institutions is also a major problem. Things are being done by institutions that were never meant to do them.

We know the direction we need to go, if our goal is freedom, prosperity, and civilization. We know that adhering to the actual Constitution will solve a myriad of problems. But getting the power back from those who have been controlling policy—and controlling us—for so many decades is a tougher question. The lecture ended before we got an answer. I don’t know yet if there is an answer.

Customer Service Week

This is a decade-old story, part of family lore now. Finally getting written down.

Let me say first that I prefer the civilized society where we can have individual mailboxes, at the curb, or attached to the house. Without worry that someone will come along and steal the mail. Those were the good old days. They still exist here and there. But not here.

Here we walk down to the end of the street and around the corner to the collective set of boxes where our mail is delivered, when there is no error, in our own locked box. (Our neighborhood has parallel streets; there are seven houses on different streets with our house number, which makes it a bit challenging for the mail carrier.) It is out in the Houston rain and sun, including the occasional tropical storm. It gets weathered.

lovely neighborhood mailbox station

This was in the early 2000s; I can’t remember the year or date exactly. We were having trouble getting our mailbox open. The key would go in with difficulty, but it took a lot of muscle to turn it. I mostly gave up trying to get the mail and let the giant men in the family do it. It needed fixing. So one day when I was at the post office for another purpose, I asked if we could get repair done on the box. They said, “This isn’t your post office; you’ll have to go to the post office assigned to your zip code.” I thought that was the one I was at, a few minutes from my house through the neighborhoods. The postal worker didn’t know where the right place would be.

A few days later I set out on the mission of getting the mailbox repaired. I started by looking in the phone book—back in the day when that’s how we looked things up. The list of zip codes was there, but the instruction was to call a number to ask what post office was assigned to your zip code.

The phonecall started with a recorded message, using about two minutes of my time, telling me that it was customer service week, and they were glad they could be of service to me. Eventually I got to ask a person where the post office was for my zip code. It was about 11 miles from home. We are apparently at the edge of a zip code boundary, and the post office is shared by several zip codes.

I got the name of the street, which is one I recognized. But I couldn’t tell by the address where along that street the post office was. This was in the days before GPSes in the car. We had maps. And in Houston, the road map is a 280-page book. You get used to it. But sometimes it takes several turns of the page to see all the portions of the road you need. I knew I could start out on the road at the place where we had occasionally been to a branch of the city library. The map looked like the road was continuous through to where I would find the post office. The problem was, it dead-ended and re-continued further on. The dead end occurred at the edge of a page, so there was no way to tell that by looking at the map.

So I hit the dead end and then wandered in and out of neighborhoods, trying to find a route. It wasn’t easy. It took me nearly an hour that day to get to the post office. Then there was a line—a single line. No way to skip the line and get to someone who would just handle a question. So I waited in line 45 minutes.

When I got to the counter, a pleasant and sympathetic postal worker said, “Oh, no, this isn’t your post office. You got changed to the newer one, probably five years ago.” That would have been before we arrived in Houston. And yet the postal service themselves, after taking two minutes of recorded message time to tell me they were celebrating customer service week, had not known where my post office was. This pleasant worker gave me the address and drew a sort of map for me, to be helpful.

Have I mentioned Houston weather? Every time I get in the car, after leaving to stand in line for 45 minutes, the car heats up to well over 120 degrees, and it takes a while for the air conditioner to recover from that. It causes wilting.

I got back on the road. The post office I was now sent to was a bit closer to my house, but oddly placed. The entrance to the little street it’s on is approximately under the intersection of the Northwest Freeway and the Tollway. You have to be on the freeway feeder road to get to the street. (A feeder road is like a side road, parallel to the freeway, several lanes wide, so you can maneuver onto the freeway onramp or over to the sides after an exit. It’s a fast road, like a freeway with occasional traffic lights.) If you miss your street, you probably have to follow the feeder road to the next exit, do a U-turn under the freeway, come back and go beyond what you need, so you can do another U-turn and try again. It took me more than one try—because address numbers aren’t real common right under a freeway, so it’s hard to guess where you are. The first try I didn’t even notice it was a street and not a driveway.

Eventually I got to my actual post office—which I had never been aware of before. Again, there was a line. Multiple lines, but nothing just for answering questions. I just had to pick a line and wait and wait and wait. Forty-five minutes later I got to the counter and reported that I needed a repair on my mailbox.

“Give us your key, and we’ll get to it in a few days.”

“You want me to give you my key so I can’t get my mail for several days?”

“You said you couldn’t open it anyway.”

“I can’t. But my very strong son and husband can muscle it open. I didn’t bring the key with me.”

At this point, my face was getting red. I had been away from home for close to three hours. In my defense, let me say that I am not as calm as I ought to be when my blood sugar has dropped. I also have a difficult time standing in lines. I can walk relatively long distances, but standing makes me woozy. So I was good and woozy by this point. And I was more than a little put out—especially knowing that IT WAS CUSTOMER SERVICE WEEK.

I do not swear. I don’t even yell in situations like this. But I can and have raised my voice just enough, with enough intensity, that someone might worry that I am going to “go postal.” I’m sure I did not make their day more pleasant, and I hope no one I know witnessed it. (My kids missed this episode, fortunately, but heard enough about it that they go to lengths to help me avoid putting myself in similar circumstances.)

This exchange I had with the postal worker went on for some time. He offered no solution other than “Go home, get your key, drive back here, stand in line for another 45 minutes, and wait several days for us to get around to fixing your mailbox, during which time you will not have access to your mail.”

Vogon bureaucrat (from Hitchhiker's Guide to the Galaxy)

That was not acceptable to me after what I’d already been through. I asked to speak to a manager. They refused. I insisted.

Eventually the postal worker went to get a manager. Another postal worker stepped toward me and whispered, “Listen, just put some lubricant in the lock. That’s all they’re going to do anyway. It’ll probably fix it.”

At this point I was actually stunned to find someone offer a helpful solution. I thanked her and left—no manager was about to arrive anyway.

It worked, by the way. I wish I’d thought of it myself. (Or I wish the fix-it men in the family had thought of it.)

This is Houston where weather must cause this sort of problem with mailbox locks frequently. A worker at the first post office, near my house, could have said so—or at least could have said, “You’ll need to turn in the key to get the box fixed.” The person on the phone after the two-minute recorded message about how happy they were to serve me, especially during customer service week, could have told me about the lubricant—or at least have mentioned about the key. The sympathetic person at the post office I was wrongly directed to could have told me those details. The person I waited in line for at my actual post office could have offered the helpful advice about the lubricant—especially when told I didn’t have the key with me.

But only one person knew how to help—and only from experience, not from postal service training. And she only felt safe in offering me that help when the person failing to serve me walked away, so she could whisper it, because apparently giving actual help to customers—did I mention this was CUSTOMER SERVICE WEEK?—is against protocol.

What is to be learned from this? Avoid lines. Avoid low blood sugar. And especially avoid functionaries.

Functionaries—bureaucratic workers—do not think about solutions; they do not think of ways to help, or offer service. They think of procedures and protocols to cover themselves from blame, get required tasks done, and just get through their hours of work. Only occasionally among them do you find a human being willing to see you as another human being, and think about being of service.

That is why the important things—health care, educating our children, making personal financial decisions, and other things related to life, liberty and the pursuit of happiness—should be kept as far away from bureaucratic hands as possible.

Bureaucracy Encounter

Every time I encounter the block wall that is bureaucracy, I am reminded of all the reasons I want government bureaucracy out of my personal decisions: I know my reasons for my decisions better than anyone else, particularly better than some distant government worker who is paid not for the service rendered but for the time put in. 

Yesterday I renewed my driver’s license, which I had to do in person. (When I got my original Texas license 13 years ago, I happened to have a good hair day and get a relatively good photo—I’m sad to give that up.) I steeled myself for the experience, took food (which is considered contraband in the building, but I didn’t know that at the time, and doing without lunch when under considerable stress wasn’t a good idea), a book plus my kindle, on which I have recently downloaded a number of games as well as some larger books I keep meaning to get through. So I was set for a good two-hour wait. Of course it was longer than that. 

A couple of lucky breaks kept me from going postal. I had gone to a specific office, not too far from home, because that is supposed to be the most efficient one in the region (and believe me, I’ve had experience at some really bad ones). The workers were all pleasant and helpful. What a plus! And even though there was standing room only out the door when I arrived, a seat opened up for me just as I got past the initial check-if-you-have-all-your-documents line.

They give you a number, by category of the kind of service you need. I was in the renew existing license queue, at number 132. Occasionally they would come and collect the people with numbers in the 400s, 500s, and 600s to get notarizing done. So there was a system, with different hundreds assigned to different services. I listened as they announced numbers, and the first one in my range was 101. It took some minutes before they called another in the 100s. After a while I pulled out my phone and used the stopwatch feature to find out how fast my queue was moving. It took 7-10 minutes between numbers in the 100s. All the while other numbers would be called. I never noticed anyone who got there later than I did going earlier, but for the simple task of renewing a license, an average of 8 minutes per person seemed kind of excessive. 

I had been there two hours, and we finally reached 117. That meant it would be another two hours before reaching 132. I thought through leaving and coming back another day, but that would require at least another two-hour wait, maybe longer. And I was running out of days before my birthday (going after expiration of my license would require a written test as well, which I didn’t want to spend the extra time on). 

Then, as we approached the 5:00 closing time, things in the 100s line sped up. In that last half hour, we went through 118-131. I got called at a couple of minutes after 5:00, 2 ½ hours after first taking my chair (after the 20-minute wait in the initial line). They had locked the doors but had promised the hundred or so of us still there that we would get processed—but any driving tests would have to be scheduled for another day. At the new faster pace, processing all those people started to look possible. My transaction at the window, which included signature, thumbprint, eye test, and ugly photo, took less than three minutes. The reason for taking eight minutes per person the first two hours remains a mystery. But the important thing is that I survived the bureaucratic ordeal without losing my temper or even letting the workers know how dissatisfied I was. 

The people in line seemed to form natural alliances. People near us who were finally getting their number called after a couple of hours in our company were cheered and congratulated, like they’d finally won the lottery. We were all in this ordeal together. Really, it could have been worse. 

But “it could be worse” is hardly a mission statement. I know things can be done more efficiently, because I have seen that happen. Where we used to live, it was a smaller community, with just one driver’s license issuing office in the county. When we first moved there, the wait for a license was a long, slow, hot office wait of one to two hours. But then they built a new facility, roomier and more pleasant. And you could be in and out in 20 minutes—with your photo ID in hand, instead of a promise of it being mailed to you in 4-6 weeks. The population served was larger than when it had been inefficient. So something changed in how it was run. I know this could be duplicated. I have been tempted at times to tell the bureaucrats here that they should take a trip to that other facility and see how they make things so much better. 

Vogon bureaucrat from Hitchhiker's Guide to the Galaxy

I am reminded of the bureaucracy scene in Hitchhikers Guide to the Galaxy. Haven’t seen it in a while, so I don’t remember all the details, just that I have been to offices that made the sci-fi version seem realistic. At least yesterday’s wasn’t quite that bad.  

But one thing I know for sure, I do not want government anywhere near my healthcare, the raising and educating of my children and grandchildren, my choice of lighting in my home, my choice of foods, or anything much that I care about. They can stay distantly involved in infrastructure, the judicial system (although they aren’t that good there either), and protection from external or internal attacks. But anything else, there is simply no reason to trust that a distant bureaucrat, directed by some distant politician, can make any decision about my life better than I can.