The PJ Tatler

'Unfettered Capitalism'? 175,000 Pages of Federal Regulations


Whenever a liberal like Paul Krugman talks about the American system of “unfettered capitalism” I break out laughing. There are currently about 175,000 pages of federal regulations governing anything and everything about American business.

In truth, many regulations have become necessary over the decades. Worker safety has benefitted enormously and death and injury rates on the job have plummeted in the last 50 years. Our air and water are cleaner, consumer products are safer, and predatory capitalists have largely been sidelined.

But it goes without saying that agencies like the EPA are out of control, that the IRS has become even more overbearing, and that the dizzying array of federal compliance rules make it possible to violate the law without even knowing it.

AEI scholar Charles Murray has a book coming out next week titled By the People: Rebuilding Liberty Without Permission. In this extended excerpt in the Wall Street Journal, he offers a novel solution for dealing with many of these regulations: ignore them.

We now live under a presumption of constraint. Put aside all the ways in which city and state governments require us to march to their drummers and consider just the federal government. The number of federal crimes you could commit as of 2007 (the last year they were tallied) was about 4,450, a 50% increase since just 1980. A comparative handful of those crimes are “malum in se”—bad in themselves. The rest are “malum prohibitum”—crimes because the government disapproves.

The laws setting out these crimes are often so complicated that only lawyers, working in teams, know everything that the law requires. Everyone knows how to obey the laws against robbery. No individual can know how to “obey” laws such as Sarbanes-Oxley (810 pages), the Affordable Care Act (1,024 pages) or Dodd-Frank (2,300 pages). We submit to them.

The laws passed by Congress are just the beginning. In 2013, the Code of Federal Regulations numbered over 175,000 pages. Only a fraction of those pages involved regulations based on something spelled out in legislation. Since the early 1940s, Congress has been permitted by the Supreme Court to tell regulatory agencies to create rules that are “generally fair and equitable” or “just and reasonable” or that prohibit “unfair methods of competition” or “excessive profits,” and leave it to the regulators to make up whatever rules they think serve those lofty goals.

It gets worse. If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The “administrative courts” through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeals.


Seen in this perspective, the regulatory state is the Wizard of Oz: fearsome when its booming voice is directed against any single target but, when the curtain is pulled aside, revealed as impotent to enforce its thousands of rules against widespread refusal to comply.

And so my modest proposal: Let’s withhold that compliance through systematic civil disobedience. Not for all regulations, but for the pointless, stupid and tyrannical ones.

The clock is ticking on Mr. Murray’s upcoming tax audit.

The key here is Congress. They have the oversight authority to block many of these regulations. And, Congress could also go back to writing clear, plain-language rules to implement their legislation, rather than letting bureaucrats deliberately obscure their meaning.

But Congress is too busy posing for the cameras, passing bills naming the local post office after themselves, or voting to make Tuesday next week “National Fast Food Workers Day.” If they’re in session 3 days a week, we’re lucky. Or maybe not, if you consider that as long as Congress is out of town, they can’t reach into your pocket.

Complexity in government is not a bug, it’s a feature. I don’t know if Murray’s idea of ignoring regulations is all that smart. But at least it’s doing something to try to stem the tide of federal power rolling across the countryside, reaching into every nook and cranny of American life.