April 1, 2025
Dear Friends and Family,
This is the third segment about the administrative state. Let me summarize what I have learned as a result:
1.On a Macro Scale: What is the added value that the administrative state contributes to our society?
2.On an individual scale: If I am in a regulator role in a government overwhelmed with regulations, how do I make myself productive and a contributor?
DOGE is providing some of the answers.
Next: The next segment is titled “Departments and Agencies.” It provides a sense of the vastness and size of our bureaucratic government.
Happy Learning,
Harley
Dear Friends and Family,
This is the third segment about the administrative state. Let me summarize what I have learned as a result:
- In segment one I learned that the Constitution was written with the intent of providing no administrative power to an internal bureaucracy based on power abuse historical existing in administrative bureaucracies of monarchies.
- Segment two revealed that Congress has delegated a great deal of rule-making and legal interpretation to the administrative state giving them substantial power in terms of governance. The author of the excerpts contends it’s unconstitutional. In fact, he reports that administrative rulemaking has surpassed legislative law making in importance and as a result Congress has found it convenient to emphasize its oversight function at the expense of lawmaking or general legislation.
- In this segment, Associate Justice of the Supreme Court, Neil Gorsuch reports that U.S. law has exploded to the point that it has become exceedingly difficult to navigate and is leading us as a society to overuse it. He makes the point “that while some law is essential to our democracy and liberties and equal of all people, too much law can undermine all those things and even respect of law itself.”
1.On a Macro Scale: What is the added value that the administrative state contributes to our society?
2.On an individual scale: If I am in a regulator role in a government overwhelmed with regulations, how do I make myself productive and a contributor?
DOGE is providing some of the answers.
Next: The next segment is titled “Departments and Agencies.” It provides a sense of the vastness and size of our bureaucratic government.
Happy Learning,
Harley
THE GOVERNMENT OF THE EXECUTIVE BRANCH – SEGMENT 3
TOO MUCH LAW -- EXCERPTS
A NATION OF LAWS: Something is happening in our country. Law is multiplying, and its demands are growing increasingly complex. So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all.
Law is much more important in this country than in any other, because Americans are united neither by heritage, nor by memory, nor by soil, nor by language, nor by the same place of origin. What unites us is a common commitment to self-governance under a Constitution the people themselves have approved.
So, what happened? How did we get here? At the most basic level, law in our country has simply exploded. Agencies now publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, the publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal spanned about 200 volumes and over 188,000 pages. How long would it take a person to read all those federal regulations? Some estimate “over three years … And that is just the reading component. Not comprehension…not analysis.”
Even these numbers do not come close to capturing all of the federal government’s activity. Today, agencies don’t just promulgate rules and regulations. They also issue informal “guidance documents” that ostensibly clarify existing regulations but in practice often “carry the implicit threat of enforcement action if the regulated public does not comply.” As you might imagine, much in this growing mountain of law isn’t exactly intuitive, either. Did you know that it’s a federal crime to enter a post office while intoxicated? Or to sell a mattress without a warning label? And if you’re a budding pasta entrepreneur, take note: by federal degree, macaroni must have a diameter between .11 an.27 inches, while vermicelli must not be more than .06 inches in diameter. Both may contain egg whites – but those egg whites cannot constitute more than 2% of the weight of the finished product.
If officials in the federal government have been busy, it’s not as if their counterparts at the state and local levels have been idle. The New York Times reported on the regulatory hurdles associated with opening a new restaurant in the city. It found that an individual “may have to contend with as many as 11 city agencies, often with conflicting requirements; secure 30 permits, registrations, licenses, and certificates; and pass 23 inspections.” And that’s not even counting what it takes to secure a liquor license. To appreciate the growth of our law at all levels, consider the lawyers. In recent years, the legal profession has proven a booming business. Between 1900 and 2021, the number of lawyers in the United States grew by 1,060%, while the population grew by about a third that rate. Since 1950, the number of law schools approved by the American Bar Association has nearly doubled.
Show Me the Man and I’ll Show You the Crime: How many federal crimes do you think we have these days? In 1982, the Department of Justice undertook what stands as maybe the most comprehensive count to date. A lawyer spent more than two years reading the U.S. Code -- at that time, some 23,000 pages. At the end of it all, the best the lawyer could say was that there were about 3,000 federal crimes. A little more than forty years later, the U.S. Code is roughly twice the length it was in 1982, and contemporary guesses put the number of federal crimes north of 5,000. It is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades. Once more, too, Congress’s output represents just the tip of the iceberg. Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more rules carrying criminal sanctions as well. How many? Here again, no one seems sure. But estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions today. One scholar suggests that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
Beyond the Numbers: Numbers tell part of the story, but only a part. Today the law touches our lives in very different ways than it once did. In the past, the rules that governed what happened in our home, families, houses of worship, and schools were found less in law than in custom or were left to private agreement and individual judgment. Even in the areas of life where law has long played a larger role, its character has changed. Once, most of our law came from local and state authorities; now federal law often dominates.
Accompanying this decline in civic association, we have experienced a profound decline in trust in one another. We are less inclined to respect or even tolerate different ideas about how to live, raise children, and pray. Increasingly, studies show, we consider those who disagree with our own political views to be “immoral” or “unintelligent.” In one recent survey, roughly half of surveyed voters expressed the view that individuals who support “the other Party” pose a “threat” to the American way of life; about 40% said the use of violence may be warranted to “prevent” those who hold competing views “from achieving their goals.” Rather than trust individuals to judge what is best for their own happiness, health and safety, we have become increasingly comfortable doing what the “experts” tell us – and increasingly comfortable with forcing others to do the same.
It's hard not to wonder whether the explosion in our laws owes at least something to these developments. After all, when trust in individual judgment, civic institutions, and social norms fades, where else is there to look for answers but the law? More than ever, we turn to the law to address any problem we perceive. More than ever, we are inclined to use national authorities to dictate a single answer for the whole country. More than ever, we are willing to criminalize conduct with which we disagree. And more than ever, if elected officials seem slow to act, we look to other sources of authority to fill the void.
Rulemaking: Making new laws was supposed to be a difficult business. As Madison saw it, by requiring such along and deliberative process, one so dependent on consensus, the Constitution would ensure that any new law – any new restriction on liberty – enjoys wide social acceptance, profits from an array of views during it consideration, and as a result proves more stable over time. The need for compromise, inherent in the design, also aimed to protect minorities by ensuring that their views and voices and votes couldn’t be ignored. All in all, Madison hoped that the Constitution’s arduous requirements would result in less law and more freedom – and at the same time yield laws that are wiser, more respected, and more apt to protect minority rights. For Madison, down any other path lay “calamitous” risks. In governments where lawmaking is easy, he wrote, laws can quickly become “so voluminous that they cannot be read, or so incoherent that they cannot be understood,” and they may “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” Madison hoped differently for our new nation. He sought to ensure that Americans would live under the rule of law but not be crushed by law.
In drafting our Constitution, Madison and his colleagues prized these ideals. They sought to ensure that our laws would be publicly declared, knowable in advance, and the product of democratic processes. They sought to ensure that disputes about their meaning would be resolved by neutral judges. But perhaps most of all they sought to keep “government off the backs of people” and allow them room to author their own lives. But what happens to rule-of-law values when we demand ever more from the law, when we insist on national rules before considering local solutions, and when we permit unelected officials to make more of the rules that govern us? What happens to our individual freedoms and to our aspirations for equal treatment under law? And what happens to our respect for law itself? Put another way: What rule-of-law values do we place at risk when we forget why the Constitution left so much authority to state and local authorities, why it sought to make lawmaking so hard, and why it insists on vesting the lawmaking function in elected representatives accountable to the people in regular elections?
Demise of Federalism: Much of the federal government’s expansion has taken place in just the last few decades. Between 1960 and 1979 alone, federal per capita domestic spending rose by 73% (adjusting for inflation). During the same period, civilian employment in the executive branch (excluding the Post Office and Department of Defense) rose by more than 50%. Today some peg the civilian federal workforce at just under three million, almost all of whom work in the executive branch. But even that number fails to account for the swell of federal contractors, which by 2015 number over three million. Here’s another way to think about the shift to Washington. Studies suggest that between 1969 and 2022, expenditures on lobbying the federal government increased from $40 million (in today’s dollars) to around $4 billion. Meanwhile, in 1969, five of the richest 25 counties and independent cities in the United States were located in the Washington, D.C. area; more recently, that number doubled to ten. Since the 1960s, Congress has adopted an array of new laws and created a host of powerful new federal agencies to address matters previously left to the states.
Not only has the federal government in relatively recent times assumed vast new responsibilities over matters once left to the states, it also has taken the reins in less direct ways. Unlike state and local governments, which operate with limited funds, the federal government enjoys the power to print money. And federal authorities have increasingly employed this power as a lever over state policy. Between 1960 and 2019, federal grants to states rose from $70 billion (adjusted for inflation) to over $700 billion – a 900% increase. Regularly, these grants come with strings attached that require states to enforce all manner of federal rules and standards. These days, for example, the federal government employs this tool to require states to do everything from setting a minimum drinking age to forcing medical workers to get a covid-19 vaccination on pain of losing their jobs. Overall, state governments now receive on average about a third of their revenue from the federal government – subject to Washington’s terms and conditions.
Explosion of Criminal Law: Congress has been busy adding an average of 56 new federal crimes to the books every year. As in many other areas, too, Congress has increasingly delegated its criminal lawmaking powers to executive agencies. Now, many criminal laws are not the direct product of elected representatives accountable to us; they’re the handiwork of agency officials. Nor does anyone have a clue how many federal regulatory crimes are out there. As we have seen, the best anyone can do is guess that they number over 300,000. They have grown dramatically at the state and local level as well. As we come to trust one another less, our fears lead us to demand more protections from one another. And with ever more criminal laws comes an ever-growing criminal justice bureaucracy to enforce them. As one scholar has described it:
The ranks of federal prosecutors have grown from 1,500 in 1980 to roughly 7,500 today. That’s a fivefold increase during a time span when the nation’s population didn’t even double. Many federal regulatory agencies now have some law enforcement power. The Department of Education, whose mission is to “promote student achievement,” once noted on its website that it has agents who “exercise full law enforcement authority – carrying firearms, taking sworn statements, applying for and executing search and arrest warrants.”
Thanks to developments like these, the United States is now a world leader when it comes to incarcerations. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in some of our closest competitors such as Turkmenistan and Rwanda. In all, more than a million Americans today are behind bars. One out of every 47 adults is under “some form of correctional supervision.” As Professor Whilliam Stuntz once put it, “too much law amounts to no law at all.”
Covid-19: In the early months of 2020, executive officials at every level – national, state, and local – issued emergency edicts. Some but not all of those decrees could trace their legal authority to legislation delegating emergency powers to executive officials under specified circumstances. Initially, many of the decrees ran for short durations (say, 30 days) in conformity with existing legislation. Later, however, various executive officials asserted the authority to renew their temporary edicts repeatedly. Two and a half years after a pandemic was declared, a number of states were still enforcing emergency orders. The federal government didn’t end its national public health emergency declarations until the spring of 2023 – more than three years after their initial adoption. Through it all, legislatures were rarely involved. Agencies did not always bother with providing advance notice of their new rules; nor did they always seek public comment on them. Instead, we lived in a world of intense Wilsonian administrative efficiency. Executive officials simply issued edicts. Huge number of them. Extraordinary ones, too.
At the federal level, our representatives in Congress initially enacted a temporary moratorium on certain tenant evictions but later chose not to extend the program. Unsatisfied, officials at the Centers for Disease Control and Prevention (CDC) declared their own moratorium – and then extended it again and again. Meanwhile, the Occupational Safety and Health Administration adopted emergency regulations of its own mandating covid-19 vaccines for 84 million Americans, even though (once more) Congress had already considered that course and declined to pursue it. At the state and local levels, governors and other executive officials issued decrees shuttering schools and businesses, restricting travel, and mandating the use of face masks. Outdoor playgrounds were closed. Some were fenced off. Still others were encircled with thick yellow tape reminiscent of crime scenes.
Can it come as any great surprise that in this environment – where so many laws were made and changed so quickly, where new mandates came more often by way of executive decree than legislative compromise, where open public debate was stifled – those with political clout, popular points of view, or wealth often feared better than others? Take Nevada’s reopening plan in 2020. It permitted breweries, bowling alleys, and other favored secular institutions to reopen at 50% capacity, yet limited indoor religious worship services to “no more than fifty persons” regardless of the size of the building. So, casinos in Las Vegas could host thousands of patrons, but Calvary Chapel Dayton Valley was left unable to conduct even a brief service with ninety congregants, a number that amounted to about 50% of capacity.
Covid-era restrictions distilled to their essence recent trends in our lawmaking practices, providing a glimpse of what happens when laws are made and remade with ever-increasing speed outside the legislative process. They offer a glimpse, too, into the different effects ever-changing laws can have on “the sagacious, the enterprising, and the moneyed few” as compared with “the industrious … mass of the people.” Public administration may have been vigorous and efficient. But it did not come without a price.
Agency Practices: When John F. Kennedy won the presidency, he asked James M. Landis, former dean of Harvard Law School and a leading architect of the administrative state, to undertake a comprehensive survey of federal regulatory practices. Accepting the assignment, Landis launched himself feverishly into the project. Six weeks later, he was done. The report highlighted the growing scope and impact of federal regulatory agencies, and the broad delegations Congress had afforded them. As Landis summarized, “The scope of responsibility entrusted to these agencies is enormous, exceeding in its sweep, from the standpoint of its economic impact perhaps, the powers remaining in the Executive and the Legislative.” Furthermore, he wrote, “these delegations, once made, are rarely recalled or retracted.” Instead, “the tendency is to expand them as more and more complex problems arise.” The legislative standards under which the delegations are made are similarly increasingly loosened so that not infrequently the guide in the determination of problems that face the agencies is not much more than their conception of the public interest.
Beyond that, Landis identified at least ten more particular problems with agency practices. These included excessive costs and delays in securing answers from agencies; incompetent personnel, rather than the experts he had once anticipated; insufficient interagency coordination; and flawed decisional processes. He noted, for example, that “it is general belief, founded on considerable evidence, that briefs of counsel, finding of hearing examiners, relevant portions of the basic records, are rarely read by the individuals theoretically responsible for the ultimate decision.” He observed, too, that “the combination of the functions of prosecutor and judge” in administrative adjudication had “developed a belief that elements of fairness were too frequently absent.”
The Spirit of Liberty: Our democracy doesn’t depend just on a people equipped with the knowledge necessary to engage in the hard work of self-government, or citizens able to speak freely and inclined to listen respectfully. It depends on the courage and sacrifice of men and women willing to stand up, even at a high personal cost, to defend the rights to democratic self-rule, equal treatment, life, liberty, and the pursuit of happiness that belong to us all.
What do We Want? While some law is essential to our democracy and liberties and the equal treatment of all people, too much law can undermine all of those things and even respect for law itself. As Tocqueville warned, when we do not trust one another and live isolated from our neighbors and communities, fear takes hold and nothing but the government remains to watch over us. We want laws to assume responsibility for decisions once left to individuals, families, and private associations. We want the comfort of uniform rules rather than untidy local responses. In the end, we may still have institutions we call states, Congress, the presidency, and courts. We may still have a Bill of Rights and something we call law. All the familiar terms may remain, but the meaning of those words will be hollowed out. Instead of most of the rules regulating how we live being made at the local level, almost everything of significance will be decided far from home. Instead of governing ourselves through our elected representatives, our laws will be made by officials who do not answer to us. Instead of having independent judges to decide our disputes, we will have ones who are forced to account to others. Instead of jealously guarding our rights to think, speak, pray, and pursue happiness, we will allow our liberties to become more and more circumscribed, all in the name of better protecting our own well-being. Instead of a rule of law designed to ensure fair notice, equal treatment, and room for individual flourishing, we will have rule by laws that can be applied and altered in ways that few can anticipate, that often favor the connected and moneyed and that come to cover nearly every facet of our lives. Bit by bit we will move from a world in which law is revered into one in which it generates disaffection and feed distrust. And that will be exactly what we want.
Despite my real concerns, though, I confess I remain an incorrigible optimist. America has overcome daunting odds time and again. At our nation’s birth, almost no serious thinker in Europe thought a democracy could survive long without devolving into chaos or tyranny. Yet almost 250 years later, here we stand. For much of our history, the promise of equal treatment under the law looked more like an unserious fiction than an earnest ambition. Yet while much remains to be done, we have made strides to realize that promise, from the Civil War to the Civil Rights Act of 1964. World wars, terrorist attacks, political assassinations, economic depressions, the fall of other countries to communism and fascism, and so much more have tested our nation, too. Still, America remains the greatest beacon of liberty the world has ever known. The ideals embodied in our Declaration of Independence – that each of us enjoys certain inalienable rights, that all of us are created equal, that governments derive their just power from the consent of the governed – have inspired billions of people around the world and captured truths that resonate in every human heart. I would never bet against the American people.
Source: Over Ruled: The Human Toll of Too Much Law by Neil Gorsuch (2024).
The unabbreviated version of the above can be found in the pdf document below.
TOO MUCH LAW -- EXCERPTS
A NATION OF LAWS: Something is happening in our country. Law is multiplying, and its demands are growing increasingly complex. So much so that ordinary people are often caught by surprise, and even seasoned lawyers, lawmakers, and (yes) judges sometimes struggle to make sense of it all.
Law is much more important in this country than in any other, because Americans are united neither by heritage, nor by memory, nor by soil, nor by language, nor by the same place of origin. What unites us is a common commitment to self-governance under a Constitution the people themselves have approved.
So, what happened? How did we get here? At the most basic level, law in our country has simply exploded. Agencies now publish their proposals and final rules in the Federal Register; their final regulations can also be found in the Code of Federal Regulations. When the Federal Register started in 1936, it was 16 pages long. In recent years, the publication has grown by an average of more than 70,000 pages annually. Meanwhile, by 2021 the Code of Federal spanned about 200 volumes and over 188,000 pages. How long would it take a person to read all those federal regulations? Some estimate “over three years … And that is just the reading component. Not comprehension…not analysis.”
Even these numbers do not come close to capturing all of the federal government’s activity. Today, agencies don’t just promulgate rules and regulations. They also issue informal “guidance documents” that ostensibly clarify existing regulations but in practice often “carry the implicit threat of enforcement action if the regulated public does not comply.” As you might imagine, much in this growing mountain of law isn’t exactly intuitive, either. Did you know that it’s a federal crime to enter a post office while intoxicated? Or to sell a mattress without a warning label? And if you’re a budding pasta entrepreneur, take note: by federal degree, macaroni must have a diameter between .11 an.27 inches, while vermicelli must not be more than .06 inches in diameter. Both may contain egg whites – but those egg whites cannot constitute more than 2% of the weight of the finished product.
If officials in the federal government have been busy, it’s not as if their counterparts at the state and local levels have been idle. The New York Times reported on the regulatory hurdles associated with opening a new restaurant in the city. It found that an individual “may have to contend with as many as 11 city agencies, often with conflicting requirements; secure 30 permits, registrations, licenses, and certificates; and pass 23 inspections.” And that’s not even counting what it takes to secure a liquor license. To appreciate the growth of our law at all levels, consider the lawyers. In recent years, the legal profession has proven a booming business. Between 1900 and 2021, the number of lawyers in the United States grew by 1,060%, while the population grew by about a third that rate. Since 1950, the number of law schools approved by the American Bar Association has nearly doubled.
Show Me the Man and I’ll Show You the Crime: How many federal crimes do you think we have these days? In 1982, the Department of Justice undertook what stands as maybe the most comprehensive count to date. A lawyer spent more than two years reading the U.S. Code -- at that time, some 23,000 pages. At the end of it all, the best the lawyer could say was that there were about 3,000 federal crimes. A little more than forty years later, the U.S. Code is roughly twice the length it was in 1982, and contemporary guesses put the number of federal crimes north of 5,000. It is clear that the amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades. Once more, too, Congress’s output represents just the tip of the iceberg. Our administrative agencies don’t just turn out rules with civil penalties attached to them; every year, they generate more rules carrying criminal sanctions as well. How many? Here again, no one seems sure. But estimates suggest that at least 300,000 federal agency regulations carry criminal sanctions today. One scholar suggests that “there is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
Beyond the Numbers: Numbers tell part of the story, but only a part. Today the law touches our lives in very different ways than it once did. In the past, the rules that governed what happened in our home, families, houses of worship, and schools were found less in law than in custom or were left to private agreement and individual judgment. Even in the areas of life where law has long played a larger role, its character has changed. Once, most of our law came from local and state authorities; now federal law often dominates.
Accompanying this decline in civic association, we have experienced a profound decline in trust in one another. We are less inclined to respect or even tolerate different ideas about how to live, raise children, and pray. Increasingly, studies show, we consider those who disagree with our own political views to be “immoral” or “unintelligent.” In one recent survey, roughly half of surveyed voters expressed the view that individuals who support “the other Party” pose a “threat” to the American way of life; about 40% said the use of violence may be warranted to “prevent” those who hold competing views “from achieving their goals.” Rather than trust individuals to judge what is best for their own happiness, health and safety, we have become increasingly comfortable doing what the “experts” tell us – and increasingly comfortable with forcing others to do the same.
It's hard not to wonder whether the explosion in our laws owes at least something to these developments. After all, when trust in individual judgment, civic institutions, and social norms fades, where else is there to look for answers but the law? More than ever, we turn to the law to address any problem we perceive. More than ever, we are inclined to use national authorities to dictate a single answer for the whole country. More than ever, we are willing to criminalize conduct with which we disagree. And more than ever, if elected officials seem slow to act, we look to other sources of authority to fill the void.
Rulemaking: Making new laws was supposed to be a difficult business. As Madison saw it, by requiring such along and deliberative process, one so dependent on consensus, the Constitution would ensure that any new law – any new restriction on liberty – enjoys wide social acceptance, profits from an array of views during it consideration, and as a result proves more stable over time. The need for compromise, inherent in the design, also aimed to protect minorities by ensuring that their views and voices and votes couldn’t be ignored. All in all, Madison hoped that the Constitution’s arduous requirements would result in less law and more freedom – and at the same time yield laws that are wiser, more respected, and more apt to protect minority rights. For Madison, down any other path lay “calamitous” risks. In governments where lawmaking is easy, he wrote, laws can quickly become “so voluminous that they cannot be read, or so incoherent that they cannot be understood,” and they may “undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.” Madison hoped differently for our new nation. He sought to ensure that Americans would live under the rule of law but not be crushed by law.
In drafting our Constitution, Madison and his colleagues prized these ideals. They sought to ensure that our laws would be publicly declared, knowable in advance, and the product of democratic processes. They sought to ensure that disputes about their meaning would be resolved by neutral judges. But perhaps most of all they sought to keep “government off the backs of people” and allow them room to author their own lives. But what happens to rule-of-law values when we demand ever more from the law, when we insist on national rules before considering local solutions, and when we permit unelected officials to make more of the rules that govern us? What happens to our individual freedoms and to our aspirations for equal treatment under law? And what happens to our respect for law itself? Put another way: What rule-of-law values do we place at risk when we forget why the Constitution left so much authority to state and local authorities, why it sought to make lawmaking so hard, and why it insists on vesting the lawmaking function in elected representatives accountable to the people in regular elections?
Demise of Federalism: Much of the federal government’s expansion has taken place in just the last few decades. Between 1960 and 1979 alone, federal per capita domestic spending rose by 73% (adjusting for inflation). During the same period, civilian employment in the executive branch (excluding the Post Office and Department of Defense) rose by more than 50%. Today some peg the civilian federal workforce at just under three million, almost all of whom work in the executive branch. But even that number fails to account for the swell of federal contractors, which by 2015 number over three million. Here’s another way to think about the shift to Washington. Studies suggest that between 1969 and 2022, expenditures on lobbying the federal government increased from $40 million (in today’s dollars) to around $4 billion. Meanwhile, in 1969, five of the richest 25 counties and independent cities in the United States were located in the Washington, D.C. area; more recently, that number doubled to ten. Since the 1960s, Congress has adopted an array of new laws and created a host of powerful new federal agencies to address matters previously left to the states.
Not only has the federal government in relatively recent times assumed vast new responsibilities over matters once left to the states, it also has taken the reins in less direct ways. Unlike state and local governments, which operate with limited funds, the federal government enjoys the power to print money. And federal authorities have increasingly employed this power as a lever over state policy. Between 1960 and 2019, federal grants to states rose from $70 billion (adjusted for inflation) to over $700 billion – a 900% increase. Regularly, these grants come with strings attached that require states to enforce all manner of federal rules and standards. These days, for example, the federal government employs this tool to require states to do everything from setting a minimum drinking age to forcing medical workers to get a covid-19 vaccination on pain of losing their jobs. Overall, state governments now receive on average about a third of their revenue from the federal government – subject to Washington’s terms and conditions.
Explosion of Criminal Law: Congress has been busy adding an average of 56 new federal crimes to the books every year. As in many other areas, too, Congress has increasingly delegated its criminal lawmaking powers to executive agencies. Now, many criminal laws are not the direct product of elected representatives accountable to us; they’re the handiwork of agency officials. Nor does anyone have a clue how many federal regulatory crimes are out there. As we have seen, the best anyone can do is guess that they number over 300,000. They have grown dramatically at the state and local level as well. As we come to trust one another less, our fears lead us to demand more protections from one another. And with ever more criminal laws comes an ever-growing criminal justice bureaucracy to enforce them. As one scholar has described it:
The ranks of federal prosecutors have grown from 1,500 in 1980 to roughly 7,500 today. That’s a fivefold increase during a time span when the nation’s population didn’t even double. Many federal regulatory agencies now have some law enforcement power. The Department of Education, whose mission is to “promote student achievement,” once noted on its website that it has agents who “exercise full law enforcement authority – carrying firearms, taking sworn statements, applying for and executing search and arrest warrants.”
Thanks to developments like these, the United States is now a world leader when it comes to incarcerations. Our incarceration rate is not only eight times as high as the median rate in western European democracies, it is higher than the rates found even in some of our closest competitors such as Turkmenistan and Rwanda. In all, more than a million Americans today are behind bars. One out of every 47 adults is under “some form of correctional supervision.” As Professor Whilliam Stuntz once put it, “too much law amounts to no law at all.”
Covid-19: In the early months of 2020, executive officials at every level – national, state, and local – issued emergency edicts. Some but not all of those decrees could trace their legal authority to legislation delegating emergency powers to executive officials under specified circumstances. Initially, many of the decrees ran for short durations (say, 30 days) in conformity with existing legislation. Later, however, various executive officials asserted the authority to renew their temporary edicts repeatedly. Two and a half years after a pandemic was declared, a number of states were still enforcing emergency orders. The federal government didn’t end its national public health emergency declarations until the spring of 2023 – more than three years after their initial adoption. Through it all, legislatures were rarely involved. Agencies did not always bother with providing advance notice of their new rules; nor did they always seek public comment on them. Instead, we lived in a world of intense Wilsonian administrative efficiency. Executive officials simply issued edicts. Huge number of them. Extraordinary ones, too.
At the federal level, our representatives in Congress initially enacted a temporary moratorium on certain tenant evictions but later chose not to extend the program. Unsatisfied, officials at the Centers for Disease Control and Prevention (CDC) declared their own moratorium – and then extended it again and again. Meanwhile, the Occupational Safety and Health Administration adopted emergency regulations of its own mandating covid-19 vaccines for 84 million Americans, even though (once more) Congress had already considered that course and declined to pursue it. At the state and local levels, governors and other executive officials issued decrees shuttering schools and businesses, restricting travel, and mandating the use of face masks. Outdoor playgrounds were closed. Some were fenced off. Still others were encircled with thick yellow tape reminiscent of crime scenes.
Can it come as any great surprise that in this environment – where so many laws were made and changed so quickly, where new mandates came more often by way of executive decree than legislative compromise, where open public debate was stifled – those with political clout, popular points of view, or wealth often feared better than others? Take Nevada’s reopening plan in 2020. It permitted breweries, bowling alleys, and other favored secular institutions to reopen at 50% capacity, yet limited indoor religious worship services to “no more than fifty persons” regardless of the size of the building. So, casinos in Las Vegas could host thousands of patrons, but Calvary Chapel Dayton Valley was left unable to conduct even a brief service with ninety congregants, a number that amounted to about 50% of capacity.
Covid-era restrictions distilled to their essence recent trends in our lawmaking practices, providing a glimpse of what happens when laws are made and remade with ever-increasing speed outside the legislative process. They offer a glimpse, too, into the different effects ever-changing laws can have on “the sagacious, the enterprising, and the moneyed few” as compared with “the industrious … mass of the people.” Public administration may have been vigorous and efficient. But it did not come without a price.
Agency Practices: When John F. Kennedy won the presidency, he asked James M. Landis, former dean of Harvard Law School and a leading architect of the administrative state, to undertake a comprehensive survey of federal regulatory practices. Accepting the assignment, Landis launched himself feverishly into the project. Six weeks later, he was done. The report highlighted the growing scope and impact of federal regulatory agencies, and the broad delegations Congress had afforded them. As Landis summarized, “The scope of responsibility entrusted to these agencies is enormous, exceeding in its sweep, from the standpoint of its economic impact perhaps, the powers remaining in the Executive and the Legislative.” Furthermore, he wrote, “these delegations, once made, are rarely recalled or retracted.” Instead, “the tendency is to expand them as more and more complex problems arise.” The legislative standards under which the delegations are made are similarly increasingly loosened so that not infrequently the guide in the determination of problems that face the agencies is not much more than their conception of the public interest.
Beyond that, Landis identified at least ten more particular problems with agency practices. These included excessive costs and delays in securing answers from agencies; incompetent personnel, rather than the experts he had once anticipated; insufficient interagency coordination; and flawed decisional processes. He noted, for example, that “it is general belief, founded on considerable evidence, that briefs of counsel, finding of hearing examiners, relevant portions of the basic records, are rarely read by the individuals theoretically responsible for the ultimate decision.” He observed, too, that “the combination of the functions of prosecutor and judge” in administrative adjudication had “developed a belief that elements of fairness were too frequently absent.”
The Spirit of Liberty: Our democracy doesn’t depend just on a people equipped with the knowledge necessary to engage in the hard work of self-government, or citizens able to speak freely and inclined to listen respectfully. It depends on the courage and sacrifice of men and women willing to stand up, even at a high personal cost, to defend the rights to democratic self-rule, equal treatment, life, liberty, and the pursuit of happiness that belong to us all.
What do We Want? While some law is essential to our democracy and liberties and the equal treatment of all people, too much law can undermine all of those things and even respect for law itself. As Tocqueville warned, when we do not trust one another and live isolated from our neighbors and communities, fear takes hold and nothing but the government remains to watch over us. We want laws to assume responsibility for decisions once left to individuals, families, and private associations. We want the comfort of uniform rules rather than untidy local responses. In the end, we may still have institutions we call states, Congress, the presidency, and courts. We may still have a Bill of Rights and something we call law. All the familiar terms may remain, but the meaning of those words will be hollowed out. Instead of most of the rules regulating how we live being made at the local level, almost everything of significance will be decided far from home. Instead of governing ourselves through our elected representatives, our laws will be made by officials who do not answer to us. Instead of having independent judges to decide our disputes, we will have ones who are forced to account to others. Instead of jealously guarding our rights to think, speak, pray, and pursue happiness, we will allow our liberties to become more and more circumscribed, all in the name of better protecting our own well-being. Instead of a rule of law designed to ensure fair notice, equal treatment, and room for individual flourishing, we will have rule by laws that can be applied and altered in ways that few can anticipate, that often favor the connected and moneyed and that come to cover nearly every facet of our lives. Bit by bit we will move from a world in which law is revered into one in which it generates disaffection and feed distrust. And that will be exactly what we want.
Despite my real concerns, though, I confess I remain an incorrigible optimist. America has overcome daunting odds time and again. At our nation’s birth, almost no serious thinker in Europe thought a democracy could survive long without devolving into chaos or tyranny. Yet almost 250 years later, here we stand. For much of our history, the promise of equal treatment under the law looked more like an unserious fiction than an earnest ambition. Yet while much remains to be done, we have made strides to realize that promise, from the Civil War to the Civil Rights Act of 1964. World wars, terrorist attacks, political assassinations, economic depressions, the fall of other countries to communism and fascism, and so much more have tested our nation, too. Still, America remains the greatest beacon of liberty the world has ever known. The ideals embodied in our Declaration of Independence – that each of us enjoys certain inalienable rights, that all of us are created equal, that governments derive their just power from the consent of the governed – have inspired billions of people around the world and captured truths that resonate in every human heart. I would never bet against the American people.
Source: Over Ruled: The Human Toll of Too Much Law by Neil Gorsuch (2024).
The unabbreviated version of the above can be found in the pdf document below.
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