27 Jul Federal Regulation: Applying Principles
The federal government is not the parent of any American, and Americans (except the children) are not children. Got that? We needed to clarify this before we make an analogy that explains our principled position on federal regulation.
Back in the 1970s (and likely before that, but we do not know), parenting styles generally were different than they are today. Much has been written and discussed about this, and we do not need to elaborate to any great extent. Broadly speaking, parents let their children go out and about alone and in small groups back then, as long as you were home for meals. They let you ride a bike on busy roads, go swimming unsupervised, and spend your money on whatever you saw fit. Parental “controls” were somewhat of a misnomer. It appears that in many families, at least, things are different today. Kids stay closer to home now, for example, and youth activities—particularly sports—tend to be organized, supervised. Today, there are parental controls, and not just on computers and televisions.
So, too, with government. In a way analogous to the tightening of parental supervision, our government today has many more rules than it did back in the day. The current Code of Federal Regulations, for example, consists of more than 80,000 pages; in 1970, there were 20,000 pages.
It is not our purpose here to join the ongoing conversation about whether parenting was better or worse “when we were kids” than it is now. But we will weigh in with a principled approach to federal regulation.
Protection Versus Freedom
Those who complain about the level of federal regulation today sometimes bemoan a “nanny state” that is said to stifle entrepreneurship, innovation, and prosperity. Often, this position comes from business interests. Businesses large and small say regulations “make it almost impossible to run a business” and so on.* Individuals, too, often are heard to complain about “excessive government paperwork” and “red tape.” Some, perhaps not having grown up in the Good Old Days, say they do not like being “treated like children.”
*Critics have fun pointing out “ridiculous” and “crazy” regulations, such as the federal rule governing the width, length, shape, and diameter of various pasta noodles.
On the other hand, advocates for government involvement argue that strict rules are necessary to “correct abuses by big business” and to guard consumers against various dangers. They cite examples of people being maimed or killed because a safety precaution was not taken by a manufacturing company, or because a warning was not provided. “There needs to be a law,” these advocates maintain.
For sure, both of these sides are partly correct. Some federal regulatory schemes are overly burdensome, and some others are quite appropriate and helpful. The general issue, therefore, is how to tell whether a specific regulation of a particular business activity is excessive or necessary.
To these issues, Principle Based Politics would apply three governmental principles: freedom and free enterprise, limited government, and protecting the vulnerable. On this unique controversy, all three apply with approximately equal force. Freedom and free enterprise represent fundamental values that have made America a great place to live and do business; we cannot afford to lose that edge. Protecting the vulnerable is one of the highest callings of government; we cannot let down those who need protection. And limited government demands, in all cases, that the federal government do only what is absolutely necessary—and only if no one else can do it.
None of these core principles dominates the analysis of federal regulation. In such a close case, then, the most principled approach becomes a balancing act among the competing principles. Here, limited government should be a filter to forbid passage of any and all entirely unneeded regulations or those that could be imposed by states or cities. The balance, in turn, comes down to freedom and free enterprise against protecting the vulnerable on each new government rule that properly gets through the limited government filter.
When the need to protect the vulnerable outweighs the harm to freedom on a particular topic, and only federal intervention will fill that need, only then can the necessary protections be enacted. In such situations, Congress should enact straight-forward laws that will be clear enough for the federal agencies to administer and to enforce. Any agency regulations must flow directly from the purpose and history of the legislation.
On the other hand, when the burdens on individual and business freedom outweigh any potential assistance to the vulnerable, or when another government body could help more effectively, Congress and the federal administrative agencies should butt out. Similarly, any unnecessary, confusing, or unduly burdensome regulations already on the books should be streamlined or repealed.
Balancing acts are not easy to perform, particularly on a case-by-case basis. Nevertheless, with such vital principles as freedom, free enterprise, and protecting the vulnerable at stake, our federal government must take on that challenge.
Thinking simultaneously about the seemingly unrelated subjects of federal regulation and youth in the 1970s can cause one to imagine an actual connection between the two. It is a stretch, but consider a make-believe world in which the government had passed rules to protect the vulnerable youth of that era. Call it federal regulation of parental standards. By our principled process, to promulgate parenting regulations, Congress and the agencies would need to determine that protecting those youth (who indeed all were extremely smart, charming, and promising!) overshadowed the freedoms of the dear children and their parents combined—and also that only the feds could provide the needed protections.
Stick with us, please. In this scenario, a federal rule could have been passed to forbid parents from letting their kid ride a bike on a two-lane highway with narrow shoulders. Swimming and playing helmetless tackle football without adults present? Against federal regulations. If only there had been a rule requiring a parent to reimburse a son who was allowed to spend 50 percent of his net worth on pinball and baseball cards in a single day!
Federal regulations, imaginary or real, do have their upsides and downsides.
Written by Quentin R. Wittrock, founder of Principle Based Politics.
Look for his posts twice each week, as this blog will explore and promote the idea of principle in politics, both as to individual elected leaders and our federal government as an institution.
Future political issues to be analyzed under our principle-based method include: taxation, health care, climate change and the environment, picking federal judges, social benefits programs (including Social Security), law enforcement, and foreign relations.
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