Government wants unrestrained power, 2/8
Do we have the will to fight back?
In the WSJ, Abraham Sutherland writes,
Congress has recently determined that economically meaningful transfers of digital assets should be as rare, burdensome and criminally suspect as transacting in bricks of cash. An eight-word amendment to the U.S. tax code in the infrastructure spending bill, which become law on Nov. 15, defines digital assets as cash for the first time—a small change with bad consequences for American innovation.
. . .The provision is also constitutionally suspect. Section 6050I forces businesses to collect, verify and report customers’ names, addresses, Social Security numbers and other personal information without a warrant. This is a significant imposition on privacy rights and will rightly be challenged under the Fourth Amendment.
“Secrecy is an institution of the administrative state that developed during the great conflicts of the twentieth century. It is distinctive primarily in that it is all but unexamined,” the scholar and American statesman Daniel Patrick Moynihan wrote
…“Secrecy is a form of regulation,” Moynihan wrote in the book’s opening line. This new form of regulation supervened democratic procedures and transferred power to bureaucracies operating in the shadows of the elected government.
Government officials prefer minimal scrutiny of themselves and maximum surveillance of others. Populists clamor for the opposite. David Brin, in The Transparent Society, argued that the only equilibrium is one in which both the public and government officials are subject to scrutiny. Unless the equilibrium is one of digital tyranny.
Finally, reviewing Philip Hamburger’s latest book, Nelson Lund writes,
Hamburger’s greatest contribution to the literature may be his analysis of government’s use of conditions (including threats that are withdrawn on condition of compliance) to alter the Constitution’s allocation of power. Apart from violating specific individual rights, the government uses conditions on benefits as a tool for imposing regulations that the legislature has not adopted and frequently would not enact into law. For example, Congress conditioned a portion of the funding it offered the states for highway construction on their setting the legal drinking age at a minimum of twenty-one. More egregiously, the Federal Trade Commission frequently brings administrative proceedings against telecommunication companies for breaches of data security that do not violate any statutory or common law standard.
In the Chief Operating Officer, Chief Auditor model, the CA is supposed to constrain the tendency of agencies to want to engage in excess surveillance and excessive secrecy. The CA is also supposed to identify and call attention to abuses of power, such as blackmail by government agencies who in order to obtain compliance will threaten to withhold benefits to which recipients are legally entitled.
One could hope that courts would find on behalf of private agents when regulatory agencies abuse their power. But they fail to do so. The audit agency could fail to rein in regulatory abuse, also. But my hope is that the Chief Auditor would instill a culture that seeks to stamp out the abuse of power.
COVID-19 has been used as the rationale for an extraordinary expansion of government power in the name of science: lengthy “lockdowns” of businesses and churches, vaccination mandates, government-imposed discrimination against people based on their medical choices, government-encouraged censorship of dissenting scientific views, and more. Perhaps you support some of these policies as necessary. Perhaps you don’t. But even if you support each and every one of the policies adopted, you ought to be concerned by how they have been imposed. Almost none of the policies were enacted by legislative bodies after an open public debate. Almost all of the policies were enacted unilaterally by executive branch officials asserting emergency powers or by unelected public health officials immune from public accountability.
The disturbing thought that occurs to me is that government officials are relentless salesmen for coercion. Kind of like a car salesman who won’t let you leave the lot before you’ve bought a car, and keeps showing you one vehicle after another until you give in. In the case of government, they keep showing you one scary phenomenon after another, until finally you “buy” the need for additional government power.
According to this hypothesis, the virus just happened to be the crisis we bought. We bought it for the same reason that the subjects in the Milgram Obedience Study were willing to administer painful electric shocks. Someone wearing a white lab coat told us it was the right thing to do.
I use the acronym FOOL for Fear Of Others’ Liberty. Officials just have to keep trying different ways to turn us into FOOLs until one of them works, and then government power ratchets up.
There is no will to fight back. Because fighting back would, by definition, make you a populist.
Fear of populism is the ultimate FOOLery. Literally. On the axis we're talking about, there's a continuum of government power vs. individual autonomy. Any move in the direction of individual freedom is by definition a populist appeal.
Philip Hamburger is a national treasure, but I'm not sure what the COO/CA model would do for the problem he's getting at in Purchasing Submission. The example of the drinking age wasn't even an "unelected unaccountable bureaucrats in the administrative state" issue, though, if it had been, a COO could make things even worse.
It was Congress itself in the NMDAA that said that states had to raise or age or go without 10% of their federal highway money, and in SD v Dole (1987) SCOTUS said that was fine, 7-2. More like 7.5-1.5, since one of the two dissents was O'Connor, who still agreed in principle that putting conditions on spending was fine, but who said the relationship wasn't close enough in this particular case.
The doctrine is a total mess because there is no good way in principle to precisely define this kind of soft 'coercion' that crosses the line only when SCOTUS judges feel like it does. A coherent policy would be "never any strings attached" but then state and local jurisdictions often wouldn't cooperate on even minor things like standardized data collection and reporting. That's probably a price worth paying.