Philip Wallach proposes the addition of a new term to our analysis of regulatory jargon—regulatory “decoherence.” I have no inherent objection to coining a new term: jargon can illuminate or obscure.
In this case, however, Wallach has coined a new term when a perfectly valid old term would do—the problem with government regulatory policy is not decoherence, it is incoherence. And it is not a new phenomenon, but instead it reflects an inherent and permanent problem of government, although one that has worsened over time as big government has grown in its powers and attempted to regulate in areas and ways far beyond its capacity to do so competently.
The problem with coining a new term such as decoherence is that it implies that there was a time in which government policy was coherent and that it has degraded from that golden age. Although Wallach is quick to distance himself from any allusion to a golden age of political coherence, his choice of the prefix “de” suggests a movement away from some more coherent period. Indeed, according to Wikipedia, quantum decoherence in quantum mechanics refers to “the loss of coherence or ordering of the phase angles between the components of a system in a quantum superposition.” (Emphasis added). In other words, decoherence occurs when components of a system that were previously “coherent” become incoherent when it interacts with its environment. Understanding that our problem is the incoherence inherent in big government is necessary in order to avert the natural propensity of decoherent systems toward collapse.
Wallach identifies several factors that he suggests produce greater policy decoherence than in the past. He points the finger at Congress particularly, which has abandoned its historic and constitutional role as “the fount of legislative orderings and the legitimator par excellence, two roles that have seemed quite alien to it in recent years.” In turn, this dysfunction has been driven by the reality of publicity-seeking careerist politicians pandering to activists, interest groups, and beltway media elites, as well and increasing slavishness to partisan political pressures.
Congressional incompetence has created a power vacuum that has been filled by the executive—or more accurately the hordes of bureaucrats that staff the executive branch—to try to keep the government functioning. Yet, administration could potentially create greater policy coherence; it can do so only by further distancing itself from political legitimacy. Moreover, even that tepid potential is overstated—the executive branch today is so large and unwieldy that it is impossible to imagine any President imposing coherence on the vast scope of government power.
As for the judiciary, well, Wallach notes that its tools are simply too limited to do the job. Moreover, as well illustrated by the judiciary’s abdication of any effort to uphold the rule of law or even ordinary government processes during the financial crisis, judges lack the ability to regularly stand up to the popular branches (and especially the President) even if they wanted to.
In the end, Wallach remains optimistic that regulatory decoherence can be reversed—yet he provides little guidance how this result will come about. He poses the challenge, “How we can shock our legislatures into making use of that power is the preeminent riddle in our time.”
Before critiquing Wallach’s argument, it is useful to recognize the adroitness of his newly-coined term, “decoherence.” Applying the more comprehensive definition suggested by quantum mechanics above, we can see decoherence as arising when the elements of a system come into contact with the surrounding environment, thereby creating a dynamic where the system is disturbed and driven away from coherence.
One area in which this analogy appears helpful is in understanding the evolution of the Constitution over time and in particular the breakdown of the structural provisions of the Constitution such as separation of powers and federalism. Consider one such example that illustrates the point.
Under the original Constitution, United States Senators were elected by state legislatures. Moreover, the Framers saw this structure as one of the key linchpins of the Constitution. First, by making Senators accountable to state legislators it was assumed that the Senate would protect federalism by providing a check on overreach by the federal government. Second, by creating a diversity of constituencies between the Senate and the House of Representatives, this indirect mode of election was seen as an essential element of bicameralism, which in turn was intended to frustrate special-interest factions by increasing the level of consensus necessary for legislation to be enacted. Finally, the indirect method and mode of election was seen to justify many of the unique powers granted to the Senate by the Constitution, such as their role in sitting as sort of jury to try impeachment trials and their role in treaty ratification.
Equally important, because the Framers thought the Senate would perform these functions, they made little provision for alternative modes of accomplishing these constitutional purposes. So, for example, it was believed that election of Senators by state legislatures would prove both a necessary and sufficient condition for the protection of federalism, thus the Framers built in fewer safeguards for federalism than they might have had they known that Senators eventually would be popularly elected. Moreover, courts could with greater confidence defer on questions of federalism to the political branches, because of the robust nature of this check.
Beginning in the 19th century, however, the environment around the Senate changed. A rising tide of democratic pressures combined with the demands of an increasingly interstate economy, as well as the political demands of the new special-interest groups that accompanied that rise, culminated in the enactment of the 17th Amendment in 1913.
Little did those who supported the 17th Amendment anticipate all of the impact that this tweak would have on the constitutional system, and in turn, its radiation of energy to the environment around it. It eliminated the Constitution’s primary buttress for federalism and watered-down the constitutional value of bicameralism by making the constituencies two houses of Congress much more similar. In turn, this prompted not only the growth of the federal government since that time, but particularly the rise of the rent-seeking state.
In this sense, the example of the 17th Amendment illustrates Wallach’s model of decoherence—the original Constitutional structure had some degree of coherence, as the various branches, selected by particular constituencies (direct election of House members, indirect election by state legislatures of Senators, the electoral college for the President, and lifetime appointment for good behavior for judges), were seen as creating an internal systemic balance. Altering the composition of the Senate altered the incentives and institutional elements of the system, leading to decoherence.
In turn, as Wallach notes, this change in composition and incentives has led to the increasing triumph of partisan pressures over its institutional function, as illustrated by examples such as the nakedly partisan acquittal of Bill Clinton in his impeachment trial for lying before a grand jury or the support of Senate Democrats for the Obama Administration’s illegal recess appointments (later overturned by the Supreme Court in NLRB v. Noel Canning).
But is “decoherence” the right term to describe the regulatory and legislative processes today? And, if so, has Wallach correctly identified the elements of the environment that have produced decoherence?
As I’ve noted, the more accurate term is an old one—regulatory incoherence. Many of the factors Wallach points to have always been a part of the political system—self-interested, career-oriented politicians surrounded by favor-seeking interest groups. What has changed, however, is the environment in which these favors are bought and sold. And it is that environment that gives rise to regulatory incoherence.
For most of American history, the federal government did much less than it does today and it typically restricted itself to doing those things for which it had a comparative advantage—waging wars and providing the legal infrastructure for an internal common market. Most law was generated by the common law, which acted only to resolve disputes between private citizens. The government did not tax, spend, regulate, and mandate on anything like the scale it does today. Moreover, the Constitution, as suggested, created a relatively coherent allocation of enumerated powers to the federal government and among the branches of the Constitution. Thus, when the federal government acted within its constitutional bounds, it tended to produce regulatory coherence. There is no reason to believe that politicians in past eras had any particularly greater concern for coherence than those today; it was merely that there were fewer opportunities for incoherence to arise in a government of limited and constitutionally-constrained powers.
Regulatory incoherence, as opposed to decoherence, is inherent in big government. As the government has increasingly taken on more and more power, dictating the terms of more and more of American life, it is inevitable that these varies mandates and dictates would create an increasingly incoherent system of regulation. Understanding all the interrelationships and inconsistencies between these rules is not a matter of “more” information or better information sharing—the regulatory behemoth is simply unknowable. Indeed, former Speaker of the House Nancy Pelosi simply told us what we knew already when she said about the Affordable Care Act that they had “to pass it to find out what’s in it.”
That’s the nature of government today, when laws are no longer 20 pages but 2,000 pages long. And the federal register pumps out thousands of pages of new regulations every year that regulate every miniscule detail of American life. And in a world where government promises to solve every problem before it arises, it simply cannot anticipate every unintended consequence that arises under a law.
A few examples will illustrate the point. Consider the Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank financial reform law. Among its powers the CFPB has the power to protect consumers from unfair, deceptive, and abusive lending practices. The CFPB also has the power to enforce fair lending laws, pursuant to which it has indicated that it will pursue the standard of “disparate impact,” under which it will infer discrimination from a finding of statistical disparities in loans or lending terms, even with no showing of discrimination.
Now consider how these mandates apply in practice. Pursuant to its charge to protect consumers from so-called predatory loans, the CFPB promulgated a new rule for “Qualified Mortgages,” under which lenders are discouraged from making loans to consumers with low credit scores or other markers of high-risk borrowers. Yet it is also well-known that there is a correlation between race and credit scores—minorities have lower credit scores on average than non-minorities. As a result, a lender that only makes Qualified Mortgages (thereby satisfying the consumer protection goals) will by definition find itself with statistical disparities in its lending that will give rise to an inference of discrimination. And, on the other hand, if the lender makes more loans to riskier minority borrowers, it will run afoul of the CFPB’s consumer protection regulations. The lender can be sued for making, or not making, a loan to the same person.
In practice, this inability to simultaneously comply with all of these goals is ubiquitous—and inherent—in the modern regulatory state. “Decoherence” suggests that it is possible to have the government do as much as it does but to just do it better. It isn’t. Instead, big government is inherently incoherent government. And it is simply impossible to administer big government in compliance with the rule of law.
In practice, this has given rise to the complete deterioration of the rule of law under President Obama. His decisions to willy-nilly suspend inconvenient provisions of the Affordable Care Act—indeed, to introduce greater incoherence into a regulatory system by illegally suspending clear provisions of the law—shows the futility of regulatory coherence as a goal. In turn, this has given rise to complete disdain (at least among Democratic partisans) for the rule of law, whether through “pen and phone” lawmaking or blanket suspension of the nation’s immigration laws—even going so far as to render inoperative certain provisions of the Affordable Care Act through White House blog posts or press conference announcements. And illustrating Wallach’s point about the fecklessness of courts to materially improve matters, the Supreme Court has now stepped in repeatedly to rewrite the terms of the Affordable Care Act to salvage it, increasing the incoherence of the law in order to save it.
Wallach closes by describing himself as an optimist that decoherence can be reversed. But if my analysis is correct, it won’t be enough to simply urge Congress and other officials to do their jobs better, coherent-like. Instead, it will take a radical change in the size and scope of government and especially a change in the nature of governing—an adoption of Hayekian principles toward government action that provide general and generally-applicable purpose-independent rules, such as those provided by the traditional common law, rather than the detailed laws and regulations that pour out of Washington daily. And it will take a commitment to a more modest approach to the reach of government—a recognition that not only is Washington unable to solve every problem but that in attempting to do so it creates unintended consequences that make matters worse instead of better.
Is limited government constrained by the rule of law a possibility? Can one be optimistic about restoration of the rule of law and constitutional government? On this, perhaps the analogy to quantum mechanics again provides a useful analogy, albeit one that suggests a much more pessimistic conclusion than Wallach’s optimistic aspirations. As noted, incoherence results from the interactions of a system with its environment. Yet once this interaction occurs, the system and the environment become enmeshed and the incoherence becomes irreversible. This means that
Viewed in isolation, the system’s dynamics are non-unitary (although the combined system plus environment evolves in a unitary fashion. Thus the dynamics of the system alone are irreversible. As with any coupling, entanglements are generated between the system and environment. These have the effect of sharing quantum information with—or transferring it to—the surroundings.
In other words, in the now clichéd phrase, “we have met the enemy and it is us.” We have acted on the political system and, in turn, it has acted upon us. So long as the public demands government incoherence, government is going to pretend that it can provide it. And in turn, big government feeds our appetites for more rents, protections, payments, by telling us that it can be done.
And where does decoherence end? In collapse.
Decoherence does not generate actual wave function collapse. It only provides an explanation for the observation of wave function collapse, as the quantum nature of the system ‘leaks’ into the environment. That is, components of the wave function are decoupled from a coherent system, and acquire phases from their immediate surroundings.
But restoring coherence—and averting system collapse—will require understanding the real roots of systemic incoherence and not just trying to “shock” our politicians into doing a better a job. It will require a restoration of constitutional government and a recognition among the polity that big government is inherently incoherent government. And that provides little reason for optimism.