After America

Over in England, London’s transportation department has a bureaucrat whose very title sums up our rulers’ general disposition toward us: Head of Behavior Change.

In 2008, when the Canadian Islamic Congress attempted to criminalize my writing north of the border by taking me to the “Human Rights” Commission, a number of outraged American readers wrote to me saying, “You need to start kicking up a fuss about this, Steyn, and then maybe Canadians will get mad and elect a conservative government that will end this nonsense.”

Made perfect sense. Except that Canada already had a Conservative government under a Conservative prime minister, and the very head of the “human rights” commission investigating me was herself the Conservative appointee of a Conservative minister of justice. Makes no difference. Once the state swells to a certain size, the people available to fill the ever expanding number of government jobs will be statists—sometimes hard-core Marxist statists, sometimes social-engineering multiculti statists, sometimes fluffily “compassionate” statists, sometimes patrician noblesse oblige statists, but always statists. The short history of the post-war western democracies is that you don’t need a president-for-life if you’ve got a bureaucracy-for-life: the people can elect “conservatives,” as from time to time the Germans and British have done, and the left is mostly relaxed about it because, in all but exceptional cases (Thatcher), they fulfill the same function in the system as the first-year boys at wintry English boarding schools who for tuppence-ha’penny would agree to go and take the chill off the toilet seat in the unheated lavatories until the prefects were ready to stroll in and assume their rightful place. Republicans have gotten good at keeping the seat warm.

Thus, America in the twenty-first century—a supposedly “center-right” nation governed by a left-of-center political class, a lefter-of-center judiciary, a leftest-of-center bureaucracy, all of whom have been educated by a lefterooniest-of-all academy.

Liberalism, as the political scientist Theodore Lowi put it, “is hostile to law,” and has a preference for “policy without law.”⁷⁹ The law itself doesn’t really matter so much as the process it sets in motion—or, as Nancy Pelosi famously told the American people regarding health care, “We have to pass the bill so you can find out what’s in it.”⁸⁰ When Lowi was writing in the Seventies, he noted that both the Occupational Safety and Health Administration (OSHA) and the Consumer Product Safety Commission (CPSC) were set up by a Congress that didn’t identify a single policy goal for these agencies and “provided no standards whatsoever” for their conduct. So they made it up as they went along.

Where do you go to vote out the CPSC or OSHA?

Or any of the rest of the unaccountable acronyms drowning America in alphabet soup. For more and more Americans, law has been supplanted by “regulation”—a governing set of rules not legislated by representatives accountable to the people, but invented by an activist bureaucracy, much of which is well to the left of either political party. As the newspapers blandly reported in 2010, the bureaucrats weren’t terribly bothered about whether Congress would pass a cap-and-trade mega-bill into law because, if faint-hearted Dems lose their nerve, the EPA will just “raise” “standards” all by itself.⁸¹

Where do you go to vote out the EPA?

Congress stripped provisions for end-of-life counseling (the so-called “death panels”) out of the ObamaCare bill, but Kathleen Sebelius, the Secretary of Health and Human Services, put ’em back on her say so.⁸² And why shouldn’t she? As Philip Klein pointed out in the American Spectator, the new law contained 700 references to the Secretary “shall,” another 200 to the Secretary “may,” and 139 to the Secretary “determines.” So the Secretary may and shall determine pretty much anything she wants. Plucked at random: The Secretary shall develop oral healthcare components that shall include tooth-level surveillance.⁸³

“Tooth-level surveillance”: from colonial subjects to dentured servants in a mere quarter-millennium.

Where do you go to vote out “the Secretary”?

And so “We the people” degenerates into “We the regulators, we the bureaucrats, we the permit-issuers, we the czars.” Dancing with the czars is unrepublican. “Ignorantia juris non excusat” is one of the oldest concepts of civilized society: ignorance of the law is no excuse. But today we’re all ignorant of the law, from John Conyers and the guys who make it down to li’l ol’ you on the receiving end. How can you not be? Under the hyper-regulatory state, any one of us is in breach of dozens of laws at any one time without being aware of it. In a New York deli, a bagel with cream cheese is subject to food-preparation tax, but a plain bagel with no filling is not.⁸⁴

Except that, if the clerk slices the plain bagel for you, the food-preparation tax applies. Just for that one knife cut. As a progressive caring society, New York has advanced from tax cuts to taxed cuts. Oh, and, if he doesn’t slice the plain bagel, but you opt to eat it in the deli, the food preparation tax also applies, even though no preparation was required for the food.

Got that? If you’ve got a deli, you better have, because New York is so broke they need their nine cents per sliced bagel and their bagel inspectors are cracking down. How does the song go? “If I can make it there/I’ll make it anywhere!” If you can make it there, you’re some kind of genius. To open a restaurant in NYC requires dealing with the conflicting demands of at least eleven municipal agencies, plus submitting to twenty-three city inspections, and applying for thirty different permits and certificates. Not including the state liquor license.⁸⁵ The city conceded that this could all get very complicated. So what did it do to help would-be restaurateurs? It set up a new bureaucratic body to help you negotiate your way through all the other bureaucratic bodies. Great! An Agency of Bureaucratic Expeditiousness! And, if that doesn’t work, they’ll set up an Agency of Bureaucratic Expeditiousness Regulation to keep it up to snuff.

In such a world, there is no “law”—in the sense of (a) you the citizen being found by (b) a jury of your peers to be in breach of (c) a statute passed by (d) your elected representatives. Instead, unknown, unnamed, unelected, unaccountable bureaucrats determine transgressions, prosecute infractions, and levy fines for behavioral rules they themselves craft and which, thanks to the ever more tangled spaghetti of preferences, subsidies, entitlements, and incentives, apply to different citizens unequally. But tyranny is always whimsical. You may be lucky: you may not catch their eye—for a while. But perhaps your neighbor does, or the guy down the street. No trial, no jury, just a dogsbody in some office who pronounces that you’re guilty of an offense a colleague of his invented.

One morning, I strolled into my office in New Hampshire and noticed a letter on my assistant’s desk from the State of New York’s Bureau of Compliance informing us that we were in non-compliance with the Bureau of Compliance.

This was news to me. I don’t live in New York, I don’t own a business in New York, I don’t make anything in New York, I don’t sell anything in New York, I rarely visit New York except to fly in once in a while and catch a Broadway show (which I’ll now be doing on its out-of-town tryout in New Haven). Nevertheless, the State of New York had notified me that I was in non-compliance with the Bureau of Compliance, and apparently the fine for that is $14,000.

“Fourteen grand?” I roared to my lawyer. “On principle, I’d rather go to jail and be gang-raped by whichever bunch of convicted Albany legislators I have the misfortune to be sharing a cell with.”

“I take it then you don’t want to settle?”

No, sir. I’m proud to be in non-compliance with the Bureau of Compliance. I’ve put it on my business card. Still, I was interested to read this a few days later in the New York Times:

Albany—As Gov. David A. Paterson calls lawmakers back to work on the budget this week, he has announced that the fiscal situation is so serious that he must begin laying off state workers. But there is one wrinkle, as officials try to pare government spending: No one knows for sure how big the state work force actually is.⁸⁶

Oh, my. You’d think that that would also be in non-compliance with the Bureau of Compliance, wouldn’t you? But no, it’s just business as usual.

They can audit you, but no one can audit them. You have to comply with them, but they don’t have to comply with them. The Times attempted to get some ballpark figures from the hundreds of state agencies; a few provided employment numbers, but others “seemed unaccustomed to public inquiry,” as the newspaper tactfully put it.

Why wouldn’t they be? Government accounting is a joke. In one year (2009), Medicare handed out $98 billion in improper or erroneous payments.⁸⁷ A tenth of a trillion? Ha! Rounding error. Look for it in the line-