Regulatory Roadblocks Thwart America’s Ability To Act Decisively, Author Philip Howard Contends

Americans are, or should be, learning the lesson that trying to create a fail-safe society creates a society that is sure to fail.

AP/Mark Schiefelbein
A container ship rests against wreckage of the Francis Scott Key Bridge on March 26, 2024. AP/Mark Schiefelbein

When are we going to trust our fellow Americans again? When are we going to allow qualified individuals with responsibility to make decisions without consulting detailed rulebooks and formal procedures?

Those are questions New York lawyer and author Philip K. Howard — one of whose books is called, simply, “Try Common Sense” — asks in his latest mini-tome “Everyday Freedom.” The freedom he is writing about is not the freedom of eccentric individuals to demand special treatment and punctiliously pronounced pronouns, but the freedom of individuals in positions of authority to make decisions — and actually get things done.

The book, fully titled “Everyday Freedom: Designing the Framework for a Flourishing Society,” comes just as the federal government is grappling, under the glare of national publicity, with the need to replace the Francis Scott Key Bridge, which fell into the main channel of Baltimore’s harbor after being hit by a 984-foot-long container ship bereft of electric power.

The bridge, completed in 1977, took five years to design and build. Initial estimates are that it could take 18 months to several years to replace, or more if it were redesigned or replaced by a tunnel.

That accident occurred after “Everyday Freedom” went to press, but the book’s lessons are relevant. Once upon a time, Americans knew how to build things rapidly and well. The Empire State Building was constructed by a syndicate headed by John J. Raskob and former Governor Smith in one year and 45 days in 1930-1931.

The government could build fast, too. General Brehon Somervell led New Deal Works Progress Administration laborers in building LaGuardia Airport in months, then completed construction of the Pentagon — designed over a long weekend — within 15 months in 1941-1943. It took a direct hit on 9/11, and, until 2023, was still the largest office building in the world.

In contrast, the Biden administration’s much ballyhooed $5 billion 2021 program to encourage electric vehicles has produced exactly eight charging stations. What would Somervell say?

We don’t know, because Somervell died in 1955, before, as Mr. Howard writes, “starting in the 1960s, the social and legal institutions of America were remade to try to eliminate unfair choices by people in positions of irresponsibility.”

Yale law professor Charles Reich argued that government decisions created “new property” for deprived individuals — and so legislatures “with a simplistic notion of public interest” couldn’t reduce welfare payments.

The 1960s-1970s “legal revolution,” Mr. Howard argues, produced prescriptive rulebooks, formal procedures and new litmus tests of individual rights. Some of this reflected a mistrust in segregationist Southerners, although the mandates — like the Supreme Court’s 1971 ruling in Griggs v. Duke Power Co., which effectively banned aptitude tests for job applicants — came down just as elite Southerners were giving up on barring Black people from jobs, schools, and voting.

Environmental legislation, in the process of vastly reducing unhealthful particulate emissions, required environmental impact statements, which these days can run to hundreds of thousands of pages, to be litigated and relitigated in unpredictable courts.

Those moves were fortified by Robert Caro’s “The Power Broker,” a massive biography of Robert Moses, who ran roughshod over protesters in building bridges, highways, and housing projects in metro New York, and by “The Death and Life of Great American Cities” by Jane Jacobs, who — thankfully — stopped Moses from plowing a freeway through her beloved Greenwich Village.

The transportation secretary, Peter Buttigieg, has taken to citing “The Power Broker,” and his department has cited Jacobs. He seems less interested in dismantling the impediments to decisive action that Mr. Howard describes.

The 1960s legal revolution was intended to “protect individuals against unfair or biased decisions by supervisors,” Mr. Howard writes, by reformers painfully aware of such decisions in the past. Yet “weakening individual authority had the paradoxical effect of weakening the freedoms and opportunities of individuals. Protocols replaced initiative. Behavior codes replaced spontaneity.”

Americans are, or should be, learning the lesson that trying to create a fail-safe society in fact creates a society that is sure to fail. The way out is to clean the Augean stables, to get rid of the tangled mess of requirements and statements and paperwork, and let competent people get things done.

This is what the former Republican governor of California, Pete Wilson, did after the Northridge earthquake destroyed Los Angeles’ Interstate Ten in 1994. He ditched the rules and provided penalties for late work and premiums for finishing ahead of time. The project, estimated to take two years, was completed in two months and two days.

And it’s what the Democratic governor of Pennsylvania, Josh Shapiro, did when a truck accident destroyed an overpass on Interstate 95 at Philadelphia. Mr. Shapiro suspended all regulations that “would in any way prevent, hinder, or delay necessary action.” The highway was reopened in 12 days.

The obvious importance of the I-10 and I-95 arteries at Los Angeles and Philadelphia made the two governors’ decisions widely popular. Yet unbeknownst to the public, the legal thicket created in the 1960s imposes great opportunity costs every day on a society that doesn’t have the public infrastructure or private developments its officials and entrepreneurs want to provide. In “Everyday Freedom,” Mr. Howard tells us we can do better.

The New York Sun

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