Washington State Wire commentator Melvin G. Ashton sees evil in efforts to give Washington state agencies “regulatory flexibility.” Rather than imposing rules that businesses and individuals have trouble complying with — and thus giving them a need for waivers — Mr. Ashton argues that perhaps the rules ought not to be imposed in the first place. 

“Nothing distinguishes more clearly conditions in a free country from those in a country under arbitrary government than the observance in the former of the great principles known as the Rule of Law.” – F.A. Hayek, The Road To Serfdom

This quote caught my attention recently, because the Rule of Law is something Americans take for granted, like the air we breathe, so much so that I doubt that very many people on the street could tell you what the Rule of Law actually is.  And we assume that something that everyone believes in cannot possibly be at risk.  But, in fact, it is.

What does the Rule of Law mean?  It means that the government, to which we entrust ultimate coercive power, will act in a predictable way, so that we as citizens can choose our actions accordingly.  The law says that if I physically attack you, I will be subject to incarceration or other penalties.  While this doesn’t prevent assaults entirely, it enables the free citizen to decide whether they’re going to respond to a situation with violence or some peaceful means that won’t lead to the government placing them in a small, concrete room.

But there are far more laws than any individual could possibly know, and those laws are becoming more complicated.  Take fishing for example.  There was a time when the only restrictions on what you could take home were your skill and knowledge of the terrain.  Then, you needed a license, and the number of fish you could take was limited.  Then the months of the year in which you could take those fish was limited, and today we have a complex table of the species, locations, dates, and birthplace of the fish (hatchery fish, O.K., wild fish must be released) that you need a special iPhone app to keep straight.

And still, this could be said to be the Rule of Law, because even though it’s complicated, people can learn the rules and abide by them.  In the case of fishing, the Legislature has handed the authority off to the Department of Fish and Wildlife to write the rules – but they’re still written down.  Every state agency has a book of rules (the Washington Administrative Code) that is at least as detailed as the rules given to them by the Legislature (the Revised Code of Washington).  But what would happen if Fish & Wildlife simply delegated the authority to the enforcing officer?  After all, they’re the experts, and they have local knowledge, so why not allow for “flexibility” for the officer to decide whether someone has taken more than their share of a particular type of fish on a particular day from a particular body of water?  Certainly there are some people who deserve more consideration than others, right?

If you think that sounds like trouble brewing, you’re right.  But if you think that scenario doesn’t happen, you’re wrong.  Just take a look at rules being adopted by the Department of Ecology for permits these days.  That is, if they’ve actually written the rule down, and not issued a “guidance” or a “frequently asked questions” document that sets soft expectations, but can be ignored if the enforcement officer so chooses.  These actions are defended using the term “regulatory flexibility”, and we constantly treat different citizens differently – large business, small business, governmental bodies.  And why not?  They all have different characteristics and capabilities, so why not let the enforcing officer determine, based on the specific circumstances at that point in space and time, how to use the coercive power of government to make things right?

Every time you see the word “waiver” used in a regulatory sense, the Rule of Law is being eroded.  The practice of passing a law that cannot be complied with, and then granting relief on a case-by-case basis is simply the mirror image of a law being created and applied on a case-by-case basis.  Waivers from the requirements of the federal health care reform law, granted by the Department of Human and Health Services, serve the same purpose as if Congress had handed the authority to HHS to write a law for each regulated entity that applies only to that entity.

Consider also that we regularly hear the argument from those promoting higher and higher standards (i.e. fuel efficiency, or water quality) that we cannot be bound by the capabilities of science as we know it today.  We must set policy at an unachievable level in order to spur the private sector on to INVENT the technology that will allow the citizenry to cease violating the law.  In the meantime, regulators need a stack of “Get Out of Jail Free” cards to hand out to those who have not pissed them off or been targeted by an advocacy group that might sue the regulator unless they put the perceived miscreant out of business.

Flexibility of this kind in the hands of mere mortals (as yet I have found no omniscient angels in the ranks of government employees) is like a kid playing with his dad’s gun.  The coercive power of government is the most powerful weapon in civil society, as it can completely destroy that which it targets.  When the target is selected by unelected “civil servants”, who have been granted “regulatory flexibility”, rational citizens will run for cover.  It is the difference between having highway signs telling you which direction and how far it is to Seattle or Portland, and having a government official assigned to ride in your car with you, telling you where you must go or whether you can go at all.

Even worse, the circumstances under which “regulatory flexibility” is granted are those where there is no consensus, or even a clear majority opinion on what is right.  Often the agency runs into a conflict between, oh, let’s say business and environmental activists, and the agency is uncomfortable making a clear decision because they want to please everybody (and not get sued).  So they punt, claiming the need for those in the field to respond to local conditions and resources, and they hand the gun to the kid and say, “Don’t let bad stuff happen.”

Those who deal with any regulatory agency know what I’m talking about.  But to the average citizen, the arguments in favor of flexibility seem perfectly legitimate.  That is, until the activity being regulated is something that particular citizen cares about.  Imagine that instead of a rule that bars must close by 2 a.m., police officers were authorized to shut down any establishment at any time and issue tickets to the patrons if they felt that the local conditions warranted action “in the public interest”?  Welcome to the world of regulatory flexibility.

Print PDF