* capricious laws
Topics: Rights
29 Apr 1994
From: ervan
This is a post that I have wanted to write for a long time but never tackled
because the problem is so pervasive and so insidious that I cannot do it justice.
Anyway, I'll try. It is the injustice of expansive and capricious law. By
supporters, such things are often deemed 'flexibility'. This is merely a
euphimism for giving the government authority to harass who it likes without any
reference to a standard of justice. Laws which do not have clear standards of
application will not be applied consistently but will instead be applied when
there are other reasons, which cannot themselves be acted upon (such as failing
to bribe the proper official). Furthermore, they will not be applied in such a
way as to achieve their intent.
I regard these failures not as implementation problems which could be fixed by
better structuring of the agencies in question, or by finding employees of higher
intergrity, but rather as intrinsic failures of the approach. No amount of
tinkering will ever fix this problem.
Beyond the immediate problems of more corruption, less justice in the system, and
economic inefficiency, there is a far more serious problem: it effectively denies
property rights. If everyone has similar encumberances, that's one thing. If, on
the other hand, you can never know that an investment will be secure, or what it
will take to retain the investment long enough to utilize it, it becomes very
difficult to make it. F. A. Hayek made this point eloquently many decades ago in
"The Road to Serfdom". I cannot improve on the original, but I do want to update
it with some recent examples.
FSLIC was never required to shut down insolvent banks. It had discretion to do
what seemed appropriate, to be 'flexible'. Flexibility meant that local
politicians had control over the process. S&L's which contributed money to
campaigns had calls from politicians to FSLIC (and later the RTC) to delay
action. This is no way serves the public interest of protecting the stability of
the banking. Instead it loots the public's tax money to indirectly subsidize the
campaigns of politicians who advocate more looting. This is exactly what
happened in Whitewater. When HRC says that she (and Bill) are not even accused
of doing anything illegal, she's lying. But, in this regard, she's right; this
skullduggery was completely legal. The fault lies with a capricious law that
makes it impossible for government to break the law.
Last week, Robert Reich obtained a temporary restraining order (TRO) to shut down
a rubber tire plant in Oklahoma City based on some supposed health infringement.
He went and immediately shut down the plant, even though no one had been recently
harmed and the 'problem' had been ongoing for several years. The next day, upon
jury examination, the TRO was overturned as being groundless. Was Reich
repentent? Hardly, he proposed a new set of OSHA guidelines that have no court
oversight (already its bad enough) so that he (or his minions) can shut down
anyone anytime because in their opinion something is unsafe. The accused would
have no legal redress (or perhaps the same twisted and useless sort granted to
victims of seizure under assett forfeiture laws). Already, the power has proven
to be badly abused. Will good AFLCIO plants get targetted or union
busting companies that don't contribute to Democratic candidates?
In the Chronicle last week, there was a short piece on a topless bar in
California that was being sued under the ADA (Americans with Disabilities Act
(no, that doesn't mean congress)) for having a shower like stage that was
handicap accessible. We are not talking customers, but dancers. Yes, that's
right; they were being sued because it was impossible for handicapped people to
get to the shower so they could dance nude in it. What sense does this make? It
makes the following: the ADA is quite broad and vague. Essentially everyone is
in non-compliance depending on how hard someone wants to look. But who is it
enforced on? People who really deny handicapped access where it could be used?
No, of course not (in general). Rather it is used on people that the city
otherwise wants to punish but who have violated no meaningful law (nor done
anything to irrationally harm handicapped persons).
That BATF has discretionary powers over what labels on alcoholic beverages can
say. They get to decide what's misleading and that power is used to punish the
BATF's political enemies. For instance, after the BATF made Grant's brewery
remove nutritional labeling (yes, remove) from their ale, the Grant's made a fuss
about it by calling press attention to how silly it was. The BATF responded by
delaying their celtic ale because the color of the label had changed, forced them
to relabel another product because the name, "Grant's Spiced Ale", was deemed
"frivolous" by the BATF, and worst of all changed the tax status of an existing
product from cider to wine (from truth to falsehood) then ex post facto hit them
with back taxes for having sold wine all of these years! (5/94 Reason)
The purpose of all of this is supposed to be to protect consumers of alcoholic
beverages. This law, even at its best, fails to do this.
The FAA runs the air traffic control (ATC) system, mandates safety regulations
for airlines, and decides which airlines get which routes. The last of these is
the truly dangerous one in this context. First, there is no legitimate reason
for this sort of regulatory power in the first place. If an airline wants to try
a new route and it loses money, that's its problem. If passengers want to fly a
new, cheaper flight, why stop them? (This power is not used merely to allocate
finite flight slots but is held below that level). As bad as it is that such
power even exists, it is not exercised on any 'rational' basis but is instead a
plum to hand to whichever airlines parrot the FAA political line. For instance,
there is a proposal to spin-off the ATC from the FAA (which should be done) but
the FAA protects its political turf by threatening any airline which advocates
it. I offer the following quote as support (5/94 Reason) :
One airline CEO wrote me in August 1992, "I think all the major
airline CEOs would be in favor of privatizing the FAA's ATC
functions. Unhappily....none--myself included--will publicly
endorse the idea or strongly pursue it." Why? "When the
Secretary of Transportation calls and makes an explicit request
that that individual withdraw his support for a particular
initiative, it's awfully hard to say 'No.'
---Ervan
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