Rule by Decree and Incompetence: Administrative Law, Tyranny, and Covid-19.

In 2020 we have seen an amazing amount of Rule by Decree, abandonment of the rule of law in favor of dictatorial emergency powers used by state governors, mayors, and even minor bureaucrats like county health officials. They issue commands far more onerous than those of communist or fascist dictators, and people are accepting them quite calmly. To be sure, they are not, in the United States at least (look at the UK, France, or Australia, though) doing the standard dictator thing of suppressing freedom of speech, killing their political enemies, and so forth. No, this is more like in Woody Allen’s 1971 movie, Bananas, where the former idealistic revolutionary in San Marcos, having won the war and become dictator, suddenly goes power mad and says, “all citizens will be required to change their underwear every half hour.”

What I want to write about here, though, is not that the covid-19 decrees have been unconstitutional, but that they have been reckless and stupid. They do not even seem to serve the personal and political interests of anyone, including the governors who issue the decrees. New York Governor Cuomo has no animus against old ladies, and can’t hope to win re-election by killing them, but that’s what he did with his stupid decree that nursing homes must admit covid-19 patients. Why did he do it?

I’d like to research that question in depth. Has anybody? What was he thinking? Who advised him, and what were they saying? Was it to help hospitals get rid of patients? Was it to help nursing homes get more revenue? Was it some notion of not discriminating against sick people? Did his people do any thinking at all? Was it perhaps a summer intern who wrote the decree? Lots of possibilities.

Here, though, I’d like to suggest an idea that I might turn into a full article: that rule by decree by its very nature is prone to not just evil, but stupidity. Power corrupts. Absolute power corrupts absolutely stupidly.

The reason is information flow. Rule by decree short-circuits the rule of law. It is Rule of Man, not Rule of Law. There is a traditional dispute between these two kinds of regime that hardly anybody realizes now, because Rule of Law is a phrase people use because they think everybody else thinks it’s good and they don’t think about what it actually means, even though most people actually dislike Rule of Law and would abandon it if they could. The old dispute, which does NOT have a clear right side, is between picking good leaders and giving them completely discretion to make the right decisions rapidly and without having to waste effort explaining, and giving up on picking good leaders and instead establishing good procedures that heavily constrain what the leaders can do.

Putting it that way, you can see why Rule of Law is unpopular i reality, despite its dominance in rhetoric. Most people look to family or business, where the leaders don’t have to obey rules. Dad can take away your toy gun if you hit little sister with it, and she doesn’t have to listen to what you say or have a trial or point to the family rule you broke. The CEO can fire you for coming late to work every day, and so long as he mails you your severance pay later, he doesn’t have to give you a tearful explanation or show you that there’s an official company policy you violated. Rule of Law would be a disaster in those contexts (we actually see this in unionized workforces and the Civil Service, where it’s very hard to fire someone for incompetence).

On the other hand, we have Rule of Law for governors. Rather than being Confucians, who would select a governor by competitive examinations that 99% of applicants fail and give him the power to rule by decree, rewarding the virtuous and executing the unrighteous, we elect someone every four years without any qualifications whatsoever. We do, however, require that he restrict himself to the laws passed by the statehouse and we allow appeal to the courts by citizens who think he is executing the laws unfaithfully. In modern America, we’ve departed somewhat from this by allowing him to bypass the statehouse and make most laws himself. We call these laws “regulations”, but they’re at least as important as the “statutes” that the legislators pass. This is still not Rule of Man, though, because it is not easy to make a regulation. We have intricate procedures by which the governor must make each regulation. He must pretend there is some statute that is the real law and he is just filling in the details; he must go through the bureaucracy rather than using the people in his own office; he must announce proposed regulations and allow public comment; he must worry that the legislature will get upset enough that it will cut the budget of the agency making the regulation or even go to the immense trouble of writing a statute to overrule it. It is a slow and onerous process. And then if the governor wants to change the regulation, or repeal the regulation his predecessor issued, he must go through that same process again.

Rule by Decree is much easier, as we have seen with covid-19. The governor says that a statute passed by the statehouse in some ancient time gives him the power to declare an emergency and do whatever he thinks fit to address the emergency. This, of course, is absolute power, and is exactly the legal basis for Hitler’s rule in Germany and for many other dictatorships. (The French Parliament’s giving over all its power to General Petain that gave rise to the Vichy government in France in 1940 is an excellent example. The vote was 569-100; the idea was massively popular, since French politicians were notably incompetent an dcorrupt, while Petain was one of France’s best WW I generals and incorruptible.) The Supreme Court of Michigan is currently deciding a case challenging rule by decree, attacking it on the limited issue of whether a 1945 Michigan statute giving the governor emergency powers for 28 days could be used by him to having rolling 28-day emergencies forever. Notably, under these powers, the governor does not have to go through the notice-and-comment process of administrative law for regulations, which means it is also difficult, perhaps impossible, to go to court to challenge his decrees as “arbitrary and capricious” and “lacking rational basis”. Those two phrases are terms of art in law, not used in their everyday meaning of completely stupid and lacking motivation. Rather, they mean that although there are real motivations (often, to benefit a particular business or person or persecute a political opponent), the executive branch did not explain them in making the regulation and did not go through the process seriously, instead deciding for concealed reasons what the agency wanted to do and merely pretending to go through the process.

Of course, rule by decree can be used for nefarious purposes. What’s interesting in the Summer of Covid is that this does not seem to be the case. Again: Governor Cuomo was not plotting to kill old ladies in nursing homes. Rather, the governors wanted to react quickly to what many though not all or perhaps even most people believe is a dangerous epidemic. Nobody can pretend it is an emergency any more, since this has been going on from January to September 2020 already, and there has been plenty of time to ponder, consult, and learn. But the governors have not wanted to get the legislatures involved, and I can well believe that the legislatures do not want to be involved. Covid-19 policy is a political hot potato. No politician is going to gain glory and votes by his policies; the best he can do is to try to evade responsibility, and the second-best is to try to minimize the political effect of the mistakes he will inevitably make. No state legislator wants to be responsible, as far his selfish political career. No governor does, either, but they can’t avoid it, the way things have evolved, though part of their strategy is to blame President Trump as much as possible.

But it seems the governors are doing a bad job politically too. Governor Cuomo’s killing of old ladies was not good politics. It was a blunder, as well as murder. He need not fear being charged criminally, though I think there is a good case for second-degree murder charges when a governor uses unconstitutional emergency powers in a way that could be expected to result in mass deaths. He does have to fear politically, because he has lost a lot of votes. Why?

And here we come to my main point, finally: rule by decree is stupid.

Rule by decree is stupid because it fails to use all available information. Governors are not very smart people, and when they are allowed to make laws without having to go through the legislature and the bureaucracy, they make not-very-smart laws. Legislators and bureaucrats are not very smart either, but there are lots of them, and under the Rule of Law, the governor has to pay attention to them, whether he likes it or not. Moreover, in the usual lawmaking process, the public gets to comment. The public adds even more people to the mix, and it includes a lot of smart people. In this process, much information is forced into the lawmaking. People raise awkward questions; they raise discouraging objections; they rain on the parade. This is highly unpleasant, as far as the process goes. It is much more pleasant for a governor to ask an expert or campaign contributor, draft a rule, show it to his staff, have the staff praise him for his brilliance and initiative, and issue the rule as a decree that will solve covid-19. Everybody on his staff tells him that this is a great way to make policy. He definitely does not consult people in the opposition party, who he knows are out to sabotage him, or the grumps in his own party who are always telling him he’s wrong. And so we get Cuomo killing grandma.

It’s interesting to note that this is a self-inflicted wound. We must accept that governors are not very smart. We are not Confucians; we do not rule out 99% of the population with an exam testing skill in commenting on classical poems that weeds out anybody with any less than a brilliant IQ and a superlative education. But even a person of mediocre intelligence could, if he was wise, ask for advice. He could replicate the Rule of Law by going through the whole notice-and-comment process, but just using it for input, not as a constraint. He could ask all the legislators, but especially the hostile ones, and all the lobbyists, and all the interest groups and then do what he thought best, using them just for information, ignoring them if he decided in the end that they were all wrong and he was right. He could follow the words of the absolute monarch Frederick the Great of Prussia, who said, “The people say what they like and then I do what I like”. Frederick was known for his brilliance both in warfare and domestic mundane administration, and for how he permitted free speech while giving the people and the nobility no power whatsoever in running the country.

But that’s why Frederick did better at ruling by decree than the governors. Frederick was brilliant. As a result, his ideas for decrees were good. But he was also brilliant enough to know that his ideas could usually be improved, even if he started off with an advantage over other men. And so he listened. The governors aren’t smart enough to know they’re not smart enough. They don’t listen. In my experience, it is completely wrong to think that arrogant, brilliant, men always think they’re right and never listen to anybody else. It’s certainly wrong in academic. Brilliant men very often are arrogant, but that doesn’t meany they don’t listen. Rather, they listen very hard, and then dismiss most of what less brilliant people say as wrong– but not all of it. They are good at picking and choosing, and secure enough in their egos that they don’t mind changing their mind. Mediocre people, on the other hand, are very often defensive about their ideas, seeing criticism as a threat to their reputation, and stay a million miles away from critical input. This is one reason they remain mediocre, a major reason. It’s very obvious in writing style. Good writers know they are not perfect. They seek criticism for their drafts; they rewrite endlessly if they have the time; they know even the meanest person can point out a typo or a misplaced comma. Mediocre writers hate input; they only ask for it from people they can trust to praise them; they can’t stand to rewrite their drafts because they’d notice defects. Governors are like that.

I’m tired by now, so I’ll quickly and clumsily tack two bits of material onto the end.

First, my quote source has lots of other good quotes from Frederick the Great that are connected to this:

“The people say what they like and then I do what I like”

“If I wished to punish a province, I would have it governed by philosophers.”

“Every man has a wild beast within him.”

“If soldiers were to begin to think, not one of them would remain in the army.”

Frederick The Great
“Great advantage is drawn from knowledge of your adversary, and when you know the measure of his intelligence and character, you can use it to play on his weakness.”

“The greatest and noblest pleasure which we have in this world is to discover new truths, and the next is to shake off old prejudices.”

“The more I see of men, the better I like my dog.”

“Great things are achieved only when we take great risks.”

“A king is the first servant and first magistrate of the state.”

“Diplomacy without arms is like a concert without a score”

“It is impossible to imitate Voltaire without being Voltaire.”

“Though I may not be a king in my future life, so much the better: I shall nevertheless live an active life and, on top of it, earn less ingratitude.”

“My people and I have come to an agreement which satisfies us both. They are to do what they please, and I am to do what I please.”

“Always presume that the enemy has dangerous designs and always be forehanded with the remedy. But do not let these calculations make you timid.”

“Our work is to present things that are as they are.”

“Many battles have been fought and won by soldiers nourished on beer, and the King does not believe that coffee-drinking soldiers can be relied upon to endure hardships in case of another war.”

“It is pardonable to be defeated, but never to be surprised.”

“A crown is merely a hat that lets the rain in.”

So much for Frederick. Governors, pay attention. Second, it would be worth comparing the governor’s covid-19 policymaking to how Czar Nicholas II ran his country during World War I. I was just reading Nicholas and Alexandra, which has much to say to us in America today. Nicholas was an absolute monarch. There was a parliament, but it didn’t have much power, and the Czar was the executive branch. Nicholas was well-meaning, honest, hard-working, nice, humble, and mediocre. He was no figurehead; he did his best to run Russia by himself, and not rely much on advisers. He did rely heavily on his wife, Alexandra, who was similar to him in character but even less intelligent and lacked even the small quantity of wisdom he possessed. She relied heavily on the monk Rasputin, whom she considered holy, and who had considerable following among the people, but who was known to be highly immoral, dangerous, and selfish by pretty much everybody from the Communists to the constitutionalists to the extreme monarchists, including the Czar’s mother, uncle, and cousins. The Czar made a total hash of the country’s economy and the war effort, appointing ministers with very little support from the people, the middle class, and the aristocracy, but with whom he felt comfortable. When he was overthrown in February 1917, it wasn’t by the Communists (who overthrew the new constitutional government in October), but by bread riots, soldiers who wouldn’t obey orders to suppress them, and a general feeling by everyone that the Czar had no idea what he was doing governing the country and it would be nice if someone– anyone- replaced him.

Ah– just rememberd a third point. My new paper with Mark Ramseyer on village ostracism in rural Japan is relevant (murahachibu). In that paper, we address the question of why villagers who are ostracized go to court when the judge can’t really force the other villagers to be nice to them. Our answer is that the court can still provide information. The court is unbiased and indifferent, and expert at evaluating evidence. If the villager can get the court to declare that he is in the right and shouldn’t be ostracized, that declaration itself may persuade the villagers that they were wrong and get them to stop ostracizing him, which they don’t want to do if he was a wrongful victim. The similarity is that the village uses the court just like the governor could use public input– as a way to avoid mistaking mistakes due to thinking in the bubble.

See also: Historical Examples of Rule by Decree.