The Presumption of Tyranny

So, the Republicans have captured the House and almost deadlocked the Senate, propelled by the awesome Power of the People as manifested by the Tea Parties.  Now the fun begins, as we finally see the chainsaw taken to the overgrown brambles of government that have captured the American people in a dense thicket of intrusive regulations!  Right?

No, of course not.  President Obama still occupies the Oval Office, and as we all remember from grade school, to become a law a bill has to be signed by the president.  Unless you have 2/3 majorities in both House and Senate to override a veto - but Republicans don't, and conservatives aren't even close.

There is historical precedent for a liberal president to meet conservatives halfway.  Bill Clinton tried to shove through Hillarycare while he had a Democratic Congress; but after Newt Gingrich took over the House, Clinton became willing to sign welfare reform.  Does anybody consider it likely that Mr. Obama will be that flexible, reasonable, and - dare we say it - conservative?  Not really.

How about gridlock then?  As the saying goes, “No man's life, liberty or property is safe while the legislature is in session," so the next best thing must be a government that can't get anything done.  At the very least, a defunded, shut-down government can't harass us.

Once upon a time, that was true.  Unfortunately, it isn't anymore.

A bureaucrat at work.

Presumption of Liberty, Presumption of Tyranny

When our Founder penned the Declaration of Independence, a chief complaint against King George was that

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

No better description of the natural activities of bureaucrats can be found anywhere.  They harass the people who would otherwise be doing useful work; they eat out our substance with pettifoggery and obstructionism.

Our Founders considered the King's men to be the agents of tyranny; remove the tax collectors and enforcers, and liberty would reign supreme.  If there is nobody telling you that you cannot do something, or forcing you to pay a tax before you do it, then you'll be free to just go ahead.

Since then, thousands of Americans have given their lives to defend personal liberty for themselves and their families; that's the meaning of Veterans Day.  Unfortunately, creeping tyranny at home has, a little bit at a time, eroded that precious liberty to the point where, without even thinking about it, Americans often just assume that they can't do things without government permission - and all too often they are right.

Consider the case of Obamacare.  Many conservatives have suggested that, since we don't have a conservative in the White House who'll sign repeal, we cannot actually destroy the law just now; but we can achieve the same effect by defunding it.

The newly-Republican House of Representatives holds the power of the purse: it's perfectly Constitutional to puts bans in the budget-bills forbidding any funds from being used to enforce Obamacare, or even to write the regulations it authorizes.  No funds, no law.

Alas, it's not that simple.  Yes, Congress can de-authorize the money to hire thousands of new IRS agents, or ban the Justice Department from paying their lawyers to prosecute people for not having health insurance.

At best, this would only have the effect of delayed punishment.  All America would know that, while you wouldn't be punished for lack of insurance today, it's still against the law - and a future Democratic Congress could easily authorize back-investigations and back-punishments.  Thus even with enforcement suspended, most would still comply.

There is worse.  Obamacare called for regional health exchanges to be set up, selling subsidized insurance to anyone wanting it.  De-fund these, and neither the exchanges nor the subsidies will exist.  Americans will be required to buy insurance that is not for sale.

Won't the insurance companies move in to fill the gap of their own accord?  Not necessarily: remember that Obamacare forces the insurance companies to provide plans in compliance with regulations promulgated by the Secretary of Health and Human Services.  Ban any use of funds to create those regulations, and obviously they won't exist - so insurance companies couldn't follow them if they wanted to.  Thus it would be illegal for them to offer new insurance plans at all.

Just like with individuals who didn't buy health insurance, they wouldn't be punished for breaking the law today, but would be at potential great risk in the future if they went ahead anyway.  What CEO would dare take such a gamble, trusting the existence of their company to the tender mercies of an unknown future Congress?  Unthinkable.

The same is true elsewhere in the government.  Republicans have long talked about abolishing the Department of Energy and even the EPA.  This would be good for many reasons, but only if done via legislation which, as we've seen, is impossible with Mr. Obama in the White House.  Simply defunding them would be disastrous.

Why?  Because there is no presumption of liberty anymore - that is, the idea that you can do what you please unless someone in governmental authority says you can't.

Instead, America has now operated for many decades under a presumption of tyranny - that is, you cannot do anything unless you get permission from the government first.

Can you just start a business?  No - in virtually every state, you must first get a business license, and usually register to collect sales taxes.  Until you've done this, you can't legally operate.  Defund the bureaucrat who issues the licenses without changing the law requiring them, and you've simply made things worse: no new business can start, since there's nobody to get the required license from.

Defund the Department of Energy, and there'd be nobody to issue the still-required permits to build a powerplant.  Thus no more powerplants of any kind.

Defund the EPA and worse befalls - has there been a major project anywhere in decades without an environmental impact study approved and filed with the EPA?  With nobody to approve, nothing can go forward.

To Change the Culture

Conservatives have long complained about government obstruction of progress.  Occasionally we talk about tearing down bureaucracies and indeed that's essential - but it's even more essential to destroy the legal requirements for whatever those bureaucrats were doing.

Right now, virtually any activity of any significance requires prior approval from a government bureaucrat of some sort - a permit, a license, even only a receipt of documents filed.  Before you start, you must pro-actively receive government permission.

If Republicans are to start tearing down the thicket of bureaucracy, it's essential that they consider first principles.  The red tape is so horrendously tangled and so poorly understood by anyone not a member of each specific bureaucratic stovepipe that it will be almost impossible to prune it judiciously.

Tremble in fear at the thought of even a carefully-designed law banning the enforcement of this, defunding that, removing the requirement for the other thing.  Do any of us have confidence that Congress will get it exactly right?  Of course not; they'll forget an essential tweak, leaving in place the legal requirement for some pissant license that the new law defunds and removes the authority to issue - thus entirely seizing up the wheels of commerce and allowing the liberals to jump up and down screaming, "See!  We told you we needed all those bureaucrats!"

Instead, before we start in with the hatchet, we must first restore the presumption of liberty.

The law can require whatever filings it may.  As a blanket baseline, however, nothing should be required from the government before you can do anything you like.  Only if the government responds to your filing with a legally-justified, properly-formatted, fully-supported, detailed "No" within a reasonable time (say, 30 days), only then would you be barred from doing it until you get the "No" fixed.

Think of the increase in freedom!  With this one simple change, Congress could safely plunge ahead with defunding bureaucracies on every side.

Energy Department de-funded?  Filings of plans would still be required - then 30 days later, with no "No" forthcoming from bureaucrats that have been laid off, permission would be legally presumed and construction could commence.

Obamacare defunded?  Filings of requests to approve a new type of insurance would be mailed in - and again, no "No" legally means Yes.

We talk about the presumption of innocence in criminal law - that every accused criminal is considered innocent until the government has proven them guilty.

In America of the past, we had the same presumption of liberty - you could do as you liked unless the government specifically told you that you couldn't.  In order to get our economy moving again and restore the American dream, that's the philosophy we need once more.