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Nothing Outside the State: Part II

By  •  Saturday March 27, 2010 11:29 AM PDT  •  18 Comments

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.

Tags: Law, Liberty, Personal Liberty, Politics, Property Rights, Regulation, The State

13 Comment(s)

  1. The Federal Register, which is the compendium of regulations issued pursuant to the U.S. Code, is vastly larger yet. These regulations have the force of law.

    Hence, the tremendous opportunities for lawyers, when they go into “private” practice after leaving the government, to advise and represent you regarding the laws and regulations they themselves wrote. Too bad if you’re a little guy and can’t afford them.

    Bob Weber | Mar 27, 2010 | Reply

  2. When we allow lawyers and politicians to run our country, this is what happens.

    Steve Hogan | Mar 27, 2010 | Reply

  3. And, lest we forget, ignorance of the law is no excuse.

    Duane Colyar | Mar 27, 2010 | Reply

  4. When one is living in vast nation states as one among millions each different from other and probably also having aberrations in behavioral pattern, a well-meaning state would inevitably have a complex body of laws, rules and regulations. Obviously, it is difficult for anyone to comprehend the entire web but it is possible to understand specifics, which is important. This is not to say there is not a case for volume reduction or compression the vast range and huge details and depths of the body of rules and regulations. But too much of this would make things meaninglessly philosophical. However there is no case for reduction of the role of the state or government itself. The debate on this issue of man vs. the state is not new. The very fact now where on earth has man decided to go back to small city-state existence or original natural condition is reason enough for this debate to be put to rest however much excellent works of fiction it may produce.

    Ashim Kumar Chatterjee | Mar 27, 2010 | Reply

  5. Mr. Weber,

    I have also paid my dues working with the Federal Register. In general, the regulations are, if anything, more incomprehensible than the statutes that underlie them. As you say, these derivative dictates are, among other things, a jobs program for lawyers and a solid support for their blessed revolving door.

    Robert Higgs | Mar 27, 2010 | Reply

  6. High priced lawyer? You have not worked in a regulated industry. You have high priced consultants (former regulators, that have retired on a full pension). Quite a nice deal for the regulators, and the more opaque the rules are, the more demand for their services.

    mdb | Mar 28, 2010 | Reply

  7. mdb,

    Although I have not worked in a regulated industry (unless you count academia), I have burrowed pretty deeply into one of them — the medical device industry — during the years I spent researching the FDA. The pharmaceutical and medical device companies are well supplied with former FDA regulators. Also, many people leave the FDA and set up consulting firms, which charge a pretty penny to advise the companies as to how they can navigate through the byzantine regulations to get, or keep, their products on the market.

    Robert Higgs | Mar 28, 2010 | Reply

  8. Some statistics on the laws:

    The U.S. Constitution is about 6 printed pages.

    The United States Code is 24,756 printed pages (http://bookstore.gpo.gov/subjects/sb-197.jsp). This does not include “regulations issued by executive branch agencies, decisions of the Federal courts, treaties, or laws enacted by State or local governments” (http://www.gpoaccess.gov/USCODE/about.html)!

    The Federal Register records “routine publications and public notices of government agencies.”
    “Over 80,000 pages of notices, proposed and final rules were published in the Federal Register in 2002″ (http://www.gpo.gov/su_docs/fdlp/pubs/adnotes/ad081503.pdf).

    At approximately 500 words per page, that’s 50 million words for U.S. Code + Federal Register. That does not include state, county, or city laws.

    aden | Mar 28, 2010 | Reply

  9. I’m surprised there’s not a title that regulates our access to the titles!

    mikehell | Mar 28, 2010 | Reply

  10. I spent some couch potato time perusing through the code. It’s all quite interesting. I was especially awe-struck by Title 21 (Food and Drugs), chapter 3 (section 61) – “Filled Milk.”

    I was curious. Just what is “filled milk.” Thank God the government defined it for me:

    (c) The term ‘‘filled milk’’ means any milk,
    cream, or skimmed milk, whether or not condensed,evaporated, concentrated, powdered,
    dried, or desiccated, to which has been added, or which has been blended or compounded with,
    any fat or oil other than milk fat, so that the resulting product is in imitation or semblance of milk, cream, or skimmed milk, whether or not condensed, evaporated, concentrated, powdered, dried, or desiccated. This definition shall not include
    any distinctive proprietary food compound
    not readily mistaken in taste for milk or cream
    or for evaporated, condensed, or powdered milk,
    or cream where such compound (1) is prepared
    and designed for feeding infants and young children and customarily used on the order of a physician; (2) is packed in individual cans containing not more than sixteen and one-half ounces and bearing a label in bold type that the content is to be used only for said purpose”

    Section 62 then goes on to say:

    “It is declared that filled milk, as defined in
    section 61 of this title, is an adulterated article of food, injurious to the public health, and its sale constitutes a fraud upon the public. It shall be unlawful for any person to manufacture within any Territory or possession, or within the District of Columbia, or to ship or deliver for
    shipment in interstate or foreign commerce, any
    filled milk.”

    I’m sure glad the government is protecting me. Otherwise, I might find myself crying over “filled milk.”

    Phil Dillon
    Emporia, Kansas

    Phil Dillon | Mar 28, 2010 | Reply

  11. Bravo, Phil, bravo! If one must wade through such garbage, one should at least be rewarded at the end with a good pun!

    Of course, the snippet you quoted from the U.S. Code also illustrates how mercantilism, or rent-seeking, has infiltrated laws that purport to pertain to public health or some other seemingly worthy goal. Such examples are scattered profusely throughout the Code.

    Robert Higgs | Mar 28, 2010 | Reply

  12. In re: “ignorance of the law is no excuse”...
    What this refers to is the “common law”, that is, stealing, burglary, rape, murder—those uses of force against our fellows that no one could translate as “good”. It has no bearing on the multitude of man-made laws. If anyone starts to give you the “ignorance..” routine, re-educate them as to the real meaning.

    dann | Mar 29, 2010 | Reply

  13. Reading the article and subsequent replies filled me with a bizarro mix of depression and Frank Zappa/Monty Python giddy surrealism.

    Gerard Bendiks | Mar 29, 2010 | Reply

5 Trackback(s)

  1. Mar 28, 2010: from Some Links
  2. Mar 29, 2010: from ROBERT HIGGS: Nothing Outside the State: Part II « Daniel Joseph Smith
  3. Apr 6, 2010: from Our Pervasive Federal Government « Political Dialogue
  4. Apr 11, 2010: from reboot the republic » Nothing Outside The State: Part II
  5. Apr 14, 2010: from Higgs and the Expanding State | OpenMarket.org

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