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Nothing Outside the State: Part II



In a recent post at The Beacon, I sketched the vast expanse of economic and social life that state functionaries (at all levels and in all departments and agencies of government) reach by their direct participation, regulation, surveillance, or manipulation by means of taxes and subsidies. No such sketch, however, can convey the actual mass of the government’s engagement in areas and aspects of life where private individuals and institutions once had decision-making discretion.

Because the full substance of the government’s actions is much too vast for any single person to grasp, I have sometimes found it helpful simply to list government agencies, laws, or regulations that contribute to the enormous aggregate that composes the state (see, for example, the appendices of my book Crisis and Leviathan). This tactic recommended itself to me recently as I was tracking down a statute in the U.S. Code, the official compilation of all federal laws currently in force.

The U.S. Code consists of 50 “titles.” It is published every six years, and in the interim between editions an annual cumulative collection of supplements is published to keep it up to date. Here is the present makeup:

As you might suspect, some of the titles are relatively small, dealing with a limited range of subjects (for example, Title 14, Coast Guard, and Title 44, Public Printing and Documents), whereas others are vast (for example, Title 15, Commerce and Trade, and Title 50, War and National Defense). In my recent search, I happened to be looking for something in one of the gigantic titles, Title 42, The Public Health and Welfare. If a government is going to operate a welfare state, as ours does, then it is certain to create an immense mass of laws associated with this area of operation.

Title 42 contains 151 chapters:

Even if you are a government-administration junkie, I suspect that in reading down this list you encountered some surprises. Had you known that the U.S. government has a body of law with regard to leprosy (chapter 3), or youth medals (chapter 18), or—mirabile dictu—privacy protection (chapter 21A), or religious freedom restoration (chapter 21B), or juvenile delinquency prevention and control (chapter 47), or congregate housing services (chapter 89), or membrane processes research (chapter 109A), or encouraging good faith professional review activities (chapter 117), or management of rechargeable batteries and batteries containing mercury (chapter 137), or Jennifer’s law (chapter 140A), or prison rape elimination (chapter 147)?

As one reads these headings, the mind runs wild in imagining what sorts of laws lurk within the chapters. I am sorry to report, however, that should you look inside these sausage factories, you are likely to find yourself quite bewildered because you will typically find language such as the following (taken from Title 42, The Public Health and Welfare, Chapter 103, Comprehensive Environmental Response, Compensation, and Liability, Subchapter I, Hazardous Substances Releases, Liability, Compensation, Sec. 9621, Cleanup Standards):

References in Text

The Solid Waste Disposal Act, referred to in subsecs. (b)(1)(B) and (d)(2)(A)(i), (3)(B), is title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended generally by Pub. L. 94-580, Sec. 2, Oct. 21, 1976, 90 Stat. 2795, which is classified generally to chapter 82 (Sec. 6901 et seq.) of this title. Subtitle C of the Solid Waste Disposal Act is classified generally to subchapter III (Sec. 6921 et seq.) of chapter 82 of this title. For complete classification of this Act to the Code, see Short Title note set out under section 6901 of this title and Tables.
The Toxic Substances Control Act, referred to in subsec. (d)(2)(A)(i), (3), is Pub. L. 94-469, Oct. 11, 1976, 90 Stat. 2003, as amended, which is classified generally to chapter 53 (Sec. 2601 et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see Short Title note set out under section 2601 of Title 15 and Tables.
The Safe Drinking Water Act, referred to in subsec. (d)(2)(A), is title XIV of act July 1, 1944, as added Dec. 16, 1974, Pub. L. 93-523, Sec. 2(a), 88 Stat. 1660, as amended, which is classified generally to subchapter XII (Sec. 300f et seq.) of chapter 6A of this title. For complete classification of this Act to the Code, see Short Title note set out under section 201 of this title and Tables.
The Clean Air Act, referred to in subsec. (d)(2)(A)(i), is act July 14, 1955, ch. 360, 69 Stat. 322, as amended, which is classified generally to chapter 85 (Sec. 7401 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 7401 of this title and Tables.
The Clean Water Act, referred to in subsec. (d)(2)(A)(i), (B)(i), is act June 30, 1948, ch. 758, as amended generally by Pub. L. 92-500, Sec. 2, Oct. 18, 1972, 86 Stat. 816, also known as the Federal Water Pollution Control Act, which is classified generally to chapter 26 (Sec. 1251 et seq.) of Title 33, Navigation and Navigable Waters. For complete classification of this Act to the Code, see Short Title note set out under section 1251 of Title 33 and Tables.
The Marine Protection, Research and Sanctuaries Act, referred to in subsec. (d)(2)(A)(i), probably means the Marine Protection, Research and Sanctuaries Act of 1972, Pub. L. 92-532, Oct. 23, 1972, 86 Stat. 1052, as amended, which enacted chapters 32 (Sec. 1431 et seq.) and 32A (Sec. 1447 et seq.) of Title 16, Conservation, and chapters 27 (Sec. 1401 et seq.) and 41 (Sec. 2801 et seq.) of Title 33. For complete classification of this Act to the Code, see Short Title note set out under section 1401 of Title 33 and Tables.

Okay. Are you clear on the references now? If so, you can now go back through the main body of the section and link the substance of the stipulated requirements and prohibitions to the terms ostensibly clarified by the legislative enactments just listed. Actually, you can’t, or, at all events, you’d be a fool to try. Carrying out such jobs was God’s purpose in putting high-priced lawyers on this earth.

In general, in attempting to determine what the federal laws and regulations require or forbid one to do, a normal human being is completely helpless. The laws might as well be written in Sanskrit. Unfortunately, you cannot rely on your lawyer, either, as you’ll find out when the government takes you to court and the government’s lawyers present a completely different interpretation of the law or regulation from the one your high-priced lawyer insisted you could rely on.

I remind you that the U.S. Code contains not dozens, or scores, or hundreds, or thousands, but probably hundreds of thousands of passages just as crystal clear as the example I’ve given. Of course, the average American has never opened the U.S. Code. He blithely assumes that the law is fair or, if not fair, is at least comprehensible, if not to him, then to an attorney. It has been said (by Charles Dickens’s character Mr. Bumble in Oliver Twist) that the law is an ass, as it no doubt is. Few American citizens realize, however, that the mass of the ass fills a substantial portion of the known universe.

According to Paul Simon, there must be fifty ways to leave your lover, but I am willing to conjecture that there must be hundreds of thousands of ways to get yourself in a position to be fined or sent to prison in this country. Rule of law? Not quite what F. A. Hayek had in mind.

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