Some while back I included here the comments of a prominent legal scholar characterizing the arbitrary nature of antitrust regulation in the pre-Reagan era, in which the writer compared antitrust to the tradition of the frontier sheriff: “He did not sift the evidence, distinguish between suspects, and solve crimes, but merely walked the main street and every so often pistol-whipped a few people.” That writer, if you happen to recall the post, was a young professor named Antonin Scalia.
This comes back to mind with the firestorm over the comments of EPA regional administrator Al Armendariz where he described his philosophy of regulatory enforcement that’s right out of Scalia’s analogy:
“I was in a meeting once and I gave an analogy to my staff about my philosophy of enforcement. It’s kind of like how the Romans used to conquer little villages in the Mediterranean: they’d go into little Turkish towns somewhere, they’d find the first five guys they’d run into, and they’d crucify them and then, you know, that town was really easy to manage over the next few years.”
Video here. Of course, Armendariz should be fired immediately. Of course, that won’t happen. Instead, he’s issued a lame apology: “I apologize to those I have offended and regret my poor choice of words. It was an offensive and inaccurate way to portray our efforts to address potential violations of our nation’s environmental laws.” Yes, it was offensive, but it was a highly accurate description. His only mistake was candor. The White House is backpedalling just as fast as it can, but Jay Carney has become an especially unconvincing liar. The U.S. Chamber of Commerce’s FreeEnterprise.com website has more details about the duplicity and tyrannical zeal of Armendariz.
It is important to grasp why this kind of excessive zeal is the rule rather than the exception from federal regulators, and always will be. Armendariz is wholly typical of the regulator mentality, and we won’t prevent future “crucifixions” until we make fundamental changes to revive the rule of law and restore some kind of democratic accountability to the administrative state. I summon as my expert witness once again F.A. Hayek, from his chapter on the welfare state in The Constitution of Liberty:
It is sheer illusion to think that when certain needs of the citizen have become the exclusive concern of a single bureaucratic machine, democratic control of that machine can then effectively guard the liberty of the citizen. So far as the preservation of personal liberty is concerned, the division of labor between a legislature which merely says this or that should be done and an administrative apparatus which is given exclusive power to carry out these instructions is the most dangerous arrangement possible. All experience confirms what is [quoting Roscow Pound] “clear enough from American as well as from English experience, that the zeal of administrative agencies to achieve the immediate end they see before them leads them to see their function out of focus and to assume that constitutional limitations and guaranteed individual rights must give way before their zealous efforts to achieve what they see as a paramount purpose of government.”
It would scarcely be an exaggeration to say that the greatest danger to liberty today comes from the men who are most needed and most powerful in modern government, namely, the efficient expert administrators exclusively concerned with what they regard as the public good. Though theorists may still talk about the democratic control of these activities, all who have direct experience in this matter agree that (as one recent English writer put it) “if the Minister’s control . . . has become a myth, the control of Parliament is and has always been the merest fairy-tale.” It is inevitable that this sort of administration of the welfare of the people should become a self-willed and uncontrollable apparatus before which the individual is helpless, and which becomes increasingly invested with all the mystique of sovereign authority–the Hoheitsverwaltung or Herrschaftsstaat of the German tradition that used to be so unfamiliar to Anglo-Saxons that the strange term “hegemonic” had to be coined to render its meaning.