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Editor's note: This essay is adapted from “Too many laws: the human cost of excessive laws” by Neil Gorsuch and Janie Nitze.
In his 2011 State of the Union address, President Barack Obama spoke of the growth of federal administrative agencies in recent years and, by implication, the difficulty any president faces in trying to oversee them all. The president noted that we now have 12 different agencies dealing with exports and at least five responsible for housing policy. He added: “The Department of the Interior handles salmon when it's in fresh water, but the Department of Commerce handles it when it's in salt water. I've heard it gets even more complicated once it's smoked.”
Fact checkers, who thought the president had exaggerated, went to work. In the end, they rated his statement as “mostly true,” but only because it “comprise[s][old] the complexity.”
Obama's speech drew a lot of laughs and is, in some ways, funny, but for ordinary people trying to navigate a federal bureaucracy (which has immense and often largely uncheckable power over important parts of their lives), the joke conveys a bitter truth.
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The director of the Immigrant Rights Clinic at the University of Chicago Law School, for example, told The Hill this story about the steps she had to take just to get an appointment to have her client fingerprinted in connection with an asylum order.
Associate Justice Neil Gorsuch poses during a group photo at the Supreme Court in Washington, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool, File)
She started by filing a fingerprinting application with U.S. Citizenship and Immigration Services. After a month went by without a response, she submitted another application. Still nothing. So she called the agency’s hotline. She was told to call the agency’s local office in Chicago. When she did, that office told her it did not have the authority to schedule the appointment and directed her to the national processing center. When she reached that center, a representative referred her back to the agency’s hotline.
This is what happened next:
When I called the hotline again, I was told that no one was responsible for booking appointments at that time and that I should call back in six weeks to see if new instructions had been issued. I asked to speak to a supervisor. I was told that a supervisor would call me within the next 42 days and that I should carry my phone with me at all times. If I did not answer the call, I would have to start the process over again.
When the supervisor called me weeks later, he told me that I needed to contact my client's deportation agent. I called the deportation agent, and he told me that he was not responsible for setting up the appointments either. When I begged him to help me, he finally said he would do me a favor and set up the appointment in less than five minutes. He ended the call by saying, “You know, any of those people you talked to could have set up the appointment.”
“Over Ruled,” by Neil Gorsuch and Janie Nitze, examines the impact of the powerful federal bureaucracy.
The lawyer concluded: “A system in which it takes four months to get an appointment is not only broken, it is not a system at all.” David Graeber, describing his own bureaucratic odyssey, put it this way: “They make demands that they insist are reasonable and then, upon discovering that they are not, conclude that the problem is not with the demands themselves, but with the individual incompetence of each particular human being who fails to meet them.”
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Scholar and author Edwin J. Feulner, Jr., once argued that Hayek's greatest contribution “lies in his discovery of a simple but profound truth: man does not and cannot know everything, and when he acts as if he did, disaster ensues.”
We wouldn’t say our current situation is a disaster, though George and Patel might disagree. But perhaps our society’s increasing deference to claims of bureaucratic expertise threatens something even more vital than our promise of democratic self-government or rule-of-law values: our nation’s respect for the individual — for the dignity that exists within each of us, whatever our quirks, flaws, and failings — and our conviction that the inalienable rights of the individual cannot be negotiated away, even in the name of efficient public administration.
Many years ago, a wise judge, Learned Hand, said that he would find it “very annoying to be governed by a group of Platonic guardians, even if I knew how to choose them, which I certainly do not. If they were in charge, I should miss the stimulation of living in a society in which I have, at least in theory, some role in the direction of public affairs.”
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It is a reflection that raises this question: What happens when we forget what that stimulus feels like; when we lose our appetite to participate in public life; when we become so accustomed to receiving instructions from a “group” of experts that we cannot imagine doing things any other way?
Hannah Arendt, for her part, answered this question with a warning: that of a world in which “there is no one left to argue with, to complain to, on whom the pressures of power can be brought to bear… [T]”The government of Nobody is not a government without a government, and where all are equally powerless we have a tyranny without a tyrant.”
Janie Nitze was a Senate-confirmed member of the board of directors of the Privacy and Civil Liberties Oversight Board. Previously, she was a member of Harvard Law School and an attorney in the Justice Department's Office of Legal Counsel. She clerked for U.S. Supreme Court Justices Sonia Sotomayor and Neil Gorsuch.
