Tyranny on the Margin

Crisis Management

I’m grateful for the responses to my earlier Office for Civil Rights post, especially the comments that illustrate the corrupting consequences of “government by guidance.” As I suggested, and as many readers emphasized, the subject raises much larger questions about lawful government. Herewith a few more comments on how difficult this is—and a hopefully cheerful suggestion as to what could be done.

The trajectory from lofty, well-meant enactments (the Civil Rights Act, Title IX) to the scape-goating of students, teachers, and bandleaders is a straight line: statute to regulation to “interpretation/guidance” to “voluntary” compliance. But the incentives are lousy each step of the way. Congress would rather delegate than legislate; the agency would rather bully than write a rule; and the regulated entities would rather throw people overboard and kowtow or pay money than fight back. This happens everywhere; OCR is just an example. And, no: this isn’t about the Obama administration or particularly wayward bureaucrats. If it were, things could be fixed at the ballot box, or by courts. The grim, incentive-driven march of government by guidance isn’t.

You can’t fix this at the top. I’m all in favor of evacuating the Department of Education and then leveling the LBJ Building, but OCR will survive: we are not going to repeal the Civil Rights Act. In the middle, you can’t figure out an Administrative Law doctrine to stop this stuff. If you say that the agency should have adopted this or that rule through a reasonable, reviewable process rather than a menacing letter, they’ll dispense with the guidance entirely and just make an example of someone. So any reform effort will have to be bottom-up. You have to mobilize the resilience and resistance of a society that wants to be not exactly free (that aspiration is long gone) but at least ornery. What does that take?

Government can do just about anything to you except mess with your sex life. But it usually doesn’t want to do so through outright coercion, because that’s trouble. OCR can’t prosecute people. It can, however, withhold federal funding. The crucial margin for private actors (and hence for government) isn’t, “They’ll put me in jail.” The crucial margin is the price of opting out of stuff they give you—public education, health care, and much else. Or, it’s the price of obtaining goods and services that disappear because government has regulated the producers. There’s no showerhead or toilet Gestapo in this country; it’s just that the products that actually work somehow disappear from the stores—if not by regulation, then by “guidance.” Government knows better than to confront you directly; instead, it nudges and cajoles and funds and licenses. And it will usually give an out to people and institutions who might push back. Like, send your kids to private school. Or, find a contractor with an inventory of Canadian toilet bowls.

Individual citizens can fight back, in theory, when the system mis-prices the exit costs or makes some other mistake—and individuals are sufficiently resourceful. Millionaires from Montgomery County fought back when their sons on Duke’s Lacrosse team were falsely accused of gang rape. (Of course Duke is technically private but that makes no operational difference. Substitute Ohio State if you wish.) The glitch is, people don’t seem to learn much from those encounters. Those parents aren’t going to tell their friends that Duke is beyond the pale. They’ll send their next child there, and they may send the same son to Duke Law School, which didn’t exactly cover itself in glory. Mistakes were made, Mr. Fatcat, and how about another donation and your name on a door jamb? Sure. Not long ago (although it feels like a lifetime), I cheered the prospects of what Grover Norquist calls a “Leave Us Alone” coalition—citizens who have had it and simply exit, leaving government to govern the wretched who can’t or won’t leave. But that idea, I’ve come to think, was crazy—not because it’s kind of unpatriotic, but because government knows how to make us say, “Okay—but the next straw will be too much.” Until it isn’t.

And yet: “Leave Us Alone” wasn’t and isn’t remotely as absurd as the inchoate idea of a “war of ideas” or neo-Tocquevillean notions of “mediating institutions” as barriers to government overreach and regimentation. Of course we should explain our ideas; but it’s a mistake to expect any direct, beneficial consequences, because the “marketplace of ideas” is a market for lemons. Of course republican government requires an institutional buffer between the government and isolated individuals; but there’s no denying that most mediating institutions have become government’s instruments—from the churches to the schoolyards and beyond, to accreditation agencies to tax-exempt and government-funded service organizations. If bowling leagues still existed, they’d be federally funded and have special lanes for paraplegic transsexuals. (Offense intended, to make the point.) Maybe bowling alone is not a social pathology but a good thing.

So now what? The key, it seems to me, is that every dang thing that matters happens on the margin—here, oppression by indirection. Contrary to its reputation as inefficient and ineffectual, modern government is really good on that margin, and it enjoys the enormous advantage that it can buy people and institutions into its schemes. Still, it does make mistakes, and those are opportunities.

You need people who will act on that margin. That could be some hedge fund or a small bank or a trade association (all live examples). It could be much less resourceful individuals—the sort of folks represented by the Institute for Justice and other such organizations; or ideologically driven loners who are willing to serve as positioned-for-litigation plaintiffs. It could be a charter school or some religious outfit that can’t be bought. It could even be a state: see the agitation over the Affordable Care Act. There is no constituency of marginal players; but lots of people and institutions can become one.

And then you need an institutional network that identifies these people and institutions; gives them some confidence that they’re not alone; mobilizes the resources to fight back; and explains to the world what’s at stake.

That infrastructure exists. (Our host institution here is part of it.) The only thing wrong with it is that it’s not big enough.

Reader Discussion

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on October 15, 2014 at 10:38:58 am

Hear, hear for "Tyranny on the Margin"! I've always said the Greve was a marginal thinker, and this settles it! :-)

Let me say that I found Greve’s previous post on the Office of Civil Rights to be informative if awash in paranoia. “Help, help, we’re being oppressed by a free speech – they’re sending LETTERS! Here come jack-booted thugs in black helicopters to install wheelchair-friendly Berber carpet -- oh, the humanity…!”

As Greve now acknowledges, the OCR has the discretion to bring enforcement actions based on the theories articulated in the letters whether or not they ever send the letters. So the letters were never really the locus of the problem. The problem, such as it is, arises from the fact that the OCR and Greve interpret the scope of the Civil Rights Act differently.

Let me also say that I’m not a big fan of the passive-aggressive John Galt strategy of opting out of society, cutting off our nose to spite our face.

But I like the idea of an active strategy of push-back: Have an ACLU-type public interest law firm hunt for test cases to push back on. If Greve thinks that the OCR is over-reaching, let’s have each side defend their view in court, and have a court decide. And if the problem is with litigation cost, then let’s devise a mechanism to defray those costs. The Koch Bros. waste money on a lot of hopeless causes; maybe they’d like to back a horse that would occasionally win?

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on October 15, 2014 at 12:26:54 pm

Only you could sneak the Koch Brothers into this commentary - ah!, I guess they, too, must be marginal thinkers given their plethora of *wasteful causes* you mention. To the margins with them - Oops, isn't that what the Lefties have been attempting for years. Perhaps, an OCR is in their future?

Which gets us to this:

"As Greve now acknowledges, the OCR has the discretion to bring enforcement actions based on the theories articulated in the letters whether or not they ever send the letters. So the letters were never really the locus of the problem. The problem, such as it is, arises from the fact that the OCR and Greve interpret the scope of the Civil Rights Act differently."

Sentence #3 tells us nothing that we did not know, and while ostensibly correct, is an attempt to minimize Greve's argument via imputation of *incorrect* motive / attitude toward Civil Rights and dismissing the importance / efficacy, cited by Greve, of this particular form of administrative coercion.

Sentence #2: While the letters may not be the *locus* of the problem they are the *focus* of the problem in that Greve chose to use them as illustrative of the coercive power of the Administrative State in a sort of "locus-pocus" method of rule making!

Sentence #1: Greve may only be recognizing the *claim* made by the agency of a discretionary power to bring enforcement action rather than agreeing that it possesses such a power. Moreover, Greve's position throughout the essay clearly questions whether such a power properly resides with the agency and, while citing *how* the agency / Fed guvmn't manages this feat, does not, to my reading, ever concede such a claim to the agency.

Then again the "push-back" strategy is OK - what say, you and I volunteer for it?

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Image of gabe
on October 15, 2014 at 12:59:16 pm

And what is at the CORE of these circumstances that produce these MARGINAL effects?

Is there something more than passive acceptance, active consent, and extensive popular demands (to escape personal involvements and responsibilities, e.g.) that has generated these embodiments of authority that constitute an Administrative State and a "managed" society?

So long as the CORE and the causes for its existence continue will it not produce these and other (some more drastic) MARGINAL effects?

Are there possible attacks on the MARGINAL effects which can deal with the causes for the CORE conditions that generate those effects? That is probably the salient question.

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Image of R Richard Schweitzer
R Richard Schweitzer
on October 15, 2014 at 13:12:59 pm

On top-down doctrine approach would be to reverse Chenery II and enforce the APA's text. If an agency action is not in accordance with established law, then in the context of an adjudication the agency does not get to make it up (this is probably required by the original due process clause). If the agency wants to make it up, then it should issue a rule, allow for notice and comment, and be subject to pre-enforcement review. If courts actually upheld this model, letters and guidance would be less prominent, and have little or no effect on corporate behavior. The benefits of certainty and accountability would more than likely offset the cost of some individuals not "fully complying" with the regulators desires while the agency issues rules.

This might not hold for agency grants of money to states and their cronies (or more affably, their middling institutions), which I take to be the target of your comments. In the context of Title VI, agencies follow the regs issued by DOJ, sometimes issuing their own regs, and sometimes just releasing quasi-contractual requirements euphemistically called guidance documents see e.g., http://www.fta.dot.gov/legislation_law/12349_14792.html. This of course, is in the nature of a contract just as much as a administrative action, so it is hard to say that this is unlawful agency action. Of course, the fact that these documents purport to be guidance about how to comply with Title VI regulations means that it comes down to whether the regs are actually lawful. The Supreme Court has never said they are not, and the Court has expressly refused to decide that point until now. To any OCR that means keep the freight train going until the Supreme Court stomps its foot on their necks.

So yes, you need bottom institutions and people ready to challenge the status quo on an incremental basis. But the top-down assistance of the Court and ad law doctrine would be pretty helpful. Justice Kennedy might defect when you most need him, but I do not see any other way out other than wholesale institutional reform.

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Image of JimmyC
on October 16, 2014 at 11:17:02 am

Or how about this in support of Greve's contention:

Harvard University officials caved in to federal officials in the face of funding threats and enacted a sexual misconduct policy that failed to respect the rights of the accused, claims a group of 28 current and former Harvard law professors.

The legal scholars voiced their frustration with the school’s new policy in a letter sent to The Boston Globe and published Tuesday night.

The Ivy League institution approved new measures to address sexual harassment and sexual assault in July. The policy went into effect this fall.
The new plan appears to lack even basic protections for the accused.

The preponderance of evidence standard provides a lower standard of proof for misconduct charges that was currently being used at Harvard’s 13 individual schools, The Globe reported…

“Harvard has adopted procedures for deciding cases of alleged sexual misconduct which lack the most basic elements of fairness and due process, are overwhelmingly stacked against the accused, and are in no way required by Title IX law or regulation,” reads the professors’ complaint.

Specifically, the group lamented “the absence of any adequate opportunity to discover the facts charged and to confront witnesses and present a defense at an adversary hearing.”

Under the new policy, one central office is in charge of “investigation, prosecution, fact-finding, and appellate review.”


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Image of gabe
on October 16, 2014 at 12:15:10 pm

And we ain't done yet kids! Now WE can apparanetly privilege our own communications from review:
see: Mila Sohoni: The Power to Privilege


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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.