A Purpose of Administrative Law: Avoid Utterly Stupid Regulations

Reading about the Democratic governors’ attitudes towards closing churches, and the generally mindless covid-19 policies of governors of both parties, I realize a use of the administrative law process I’ve never taught, or even heard of: to make exec officials think before they decree.

The fundamental principle of US administrative law is that an executive agency can write regulations to implement statutes the legislature passes and the executive signs, but the agency must explain why it thinks those regulations interpret the statute faithfully. More broadly, this is the “notice-and-comment” process, but the part I want to focus on is the explanation part. The judiciary looks at the agency’s explanation if someone files suit saying the agency’s regulation does not faithfully follow the statute. Under the Chevron doctrine, if the explanation isn’t ridiculous or nonexistent, the court defers to the agency’s interpretation of the statute.

Our usual argument for the Explanation requirement is that it forces the agency to pay attention to public comment and to provide some reasoning that the court can use to judge “rational basis” and such things. But now I realize there is an equally important argument: it forces the agency to think before it issues the regulation, rather than to issue it mindlessly. The problem is not just to avoid bureaucratic or executive overreach: it is also— perhaps even more important— to avoid bureaucratic or executive brainlessness.

Professor Cochrane had the good example of how some– most? — all?— governors issued orders requiring auto paint shops to close down for fear of spreading covid-19. They didn’t specifically name auto paint shops– indeed, they probably never even thought about them— but that is a big part of the problem. Workers in these shops wear professional-quality respirator masks. In fact the OSHA agency requires them to do this as a matter of law, and to provide training in fitting masks, etc., so body shop employees probably are a lot better at it than doctors. Body shop workers are much less less likely to spread disease at work than if they are sitting at home drinking beers and collecting unemployment checks or hanging out in pharmacies and grocery stores. Yet the governors all suspend their basic civil liberty of freedom to earn a living.

Why do governors do this? Are they evil? No. They are stupid. One thing that has become very clear from covid-19 is just how stupid most governors are (I shudder to think about what mayors must be like). Stupid people don’t think before they do things. You can force tehm to stop adn think, but they won’t do it on their own. Usually they have no reason to think. They just follow the protocols and instructions that they’ve used in the past or that the more intelligent people who are their bosses think up for them. In unusual times, though, or with new circumstances, the usual routines don’t work any more. Thus, we start to see behavior that looks almost random. The governors are floundering around. University administrators too. They know the old rules won’t work, but they don’t know what to do. They can’t even conceive of the idea of trying to think of an answer. Thinking is a foreign concept, kind of like creativity. They know they’re in trouble, but their response is to see what the governor in the next state is doing and imitate that. This induces informational cascades, where governor 1 shuts down businesses, so governor 2 imitates him, so governor 3 imitates governors 1 and 2, and governor 4 says “Everybody’s shutting down; I’d be a kook not to.” It’s worse than that, since governor 1 probably *is* a kook. It’s not random that he makes a decision first. He doesn’t even have the insight that maybe he should try to imitate someone who’s smarter than he is. De Toqueville wrote a book, Souvenirs, I think, about the 1848 revolution in France. He says that it’s madmen who lead mobs throught the streets. He says he means literal madmen lead the mobs, not fanatics. After all, who is most likely to say, “Hey, let’s go charge the soldiers and tear down the Bastille!”? It’s a mob, so only a few people say, “Hey, I know that guy. It’s that guy Jean who says fairies are watering his wine and keeps getting fired from every job he takes.” The rest think, “Yes, it’s time for action. Let me follow that brave man with the flashing eyes. He clearly knows what to do!”

Back to administrative law. It’s not as exciting as Revolution, but the principles are the same. If someone could force Jean to stop and say *why* he thought charging the Bastille was a good idea, then the mob would hear an answer like, “Because Archangel Michael told me to in a vision last night as I was walking home from the bordello where I clean the toilets.” That would give them pause. The governors are not literally insane, but the same sort of principle holds. Governor Jean would have to say something like, “Gee, I can’t really explain it, but doesn’t it seem like a good idea?” Governors Deux, Trois, and Quatre might then decide not to imitate him.

But the Explanation Requirement gets even better. Suppose we have it in place. Governor Jean is thinking about issuing an executive order and has a draft written up. Then State Attorney General Pierre says, “Governor, I hate to say this, but we also must write a memo giving reasons.” Governor Jean grumbles about all the bureaucratic requirements and how lawyers always want to slow things down and complicate them, but he orders his staff to come up with some explanations. The next day they come back and say,”Well, actually, Governor, we think we have to reconsider the Order, because now that we have to explain the rules, none of us can remember why we all thought they were a good idea two days ago. In fact, we can’t see any reason at all for half of them. You can still issue them, but the explanation will be so lame that you will look kind of silly.”

Judges are already constrained by this. They have lots of power, but custom requires them to give reasons for their rulings, and stops them from being lazy or rushing over a backlogged docket and issuing decisions too quickly. Governors need that constraint too.

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Update, May 22. Scott Greenfield just tweeted:

Ran through a local school district’s rules to manage reopening in the fall, full of impossible mandates and wildly unrealistic expectations of children.
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Almost none are doable.
Some violate the laws of physics.
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What are they thinking?

This shows the power of the Utter Stupidity theory. The answer to Mr. Greenfield’s question is: “They WEREN’T thinking. Nobody forced them to think before they acted.”

My son Benjamin’s high school graduation was four hours ago. It was outside, with parents in cars and the students sitting on chairs six feet apart. It actually worked great– better than other graduations I’ve been to. But it had rough edges. One reason is that nobody thought to have a rehearsal, and nobody forced them to. Probably nobody even suggested it. Things come up in live rehearsals that it’s hard to think of in advance, unless you’re very very smart– and even then, it’s easier just to have a rehearsal rather than stay up all night thinking of what might happen. In this case, a rehearsal would have revealed:

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1. With a breeze, the student speakers’ tassels and other flappy things blew all over their faces, fell off, etc.
2. You have to speak right into a microphone or it doesn’t work.
3. If the girl valedictorian is shorter than the boy salutatorian you have to adjust teh mike height in between.
4. When you tell families they can bring two cars but also tell them to park in a certain parking space, you need to resolve the contradiction (the organizers thought they were being clear when they said something like “extra cars can be parked next to the soccer field, but it wasn’t clear whether that meant the second car, or third and additional cars that weren’t permitted for the main event).
5. You need to tell people exactly where to put themselves between different parts of the ceremony— statements of “don’t get out of your cars” apparently weren’t meant literally or seriously, or maybe they were but were not enforced.
6. Graduates walking up to get their diploma and be photographed needed to be told to stand up there for 20 seconds while their “favorite bible verse” was being read and not be embarassed and walk back too quickly.

All that sort of thing worked itself out, and the graduation was a big success. They worked themselves out, though, because there were no police or courts being told they had to obey the rules, and people who improvised weren’t punished. The Commencement Address actually was right on point. The speaker was an ex-Marine, and his running theme was what he said was a running theme in his Marine training: “Improvise, Adapt, and Overcome”.