The federal government has threatened to withhold Medicare, Medicaid and CHIP funds from a Catholic hospital in Oklahoma because the staff keeps one small candle burning in its chapel. It’s tiny, encased in glass, and kept far away from medical equipment, but the feds insist it’s a safety risk.
It’s absurd, but not surprising. Absurdities are a feature of administrative rule.
What is administrative rule? It’s a system of government where nearly every aspect of citizens’ lives is regulated by obnoxious laws that nobody voted on enforced by pedantic bureaucrats who nobody voted for.
The candle is just one example. There are many.
Federal water regulators are fighting a 16-year-long battle to prevent the owners of a dry plot of land from building a home, under the theory that the land contains "navigable waters" because it is connected by a road to a marsh, by marsh to a ditch, by ditch to a creek, and by creek to a river.
And state governments have ticketed and fined children for running lemonade stands without the proper food and beverage licenses.
Administrative rule is America’s system of government. We were a republic once, but our representatives didn’t like the pressure of governing, so they foisted the responsibility onto a massive bureaucracy.
How massive? Nobody knows exactly how many agencies there are. And nobody has a clue how many rules and regulations they administer.
We know that there are hundreds of thousands of pages of laws and regulations. We know that our administrative agencies publish thousands more every year. But nobody knows how many rules they contain. Neither the smartest lawyer, nor the most learned judge has the slightest clue what the law, in total, is.
And that’s just the federal law. State legislatures have followed Congress’ bad example and foisted their jobs onto state agencies.
This is a problem. None of us voted for or has any ability to vote against any of these laws. And nobody, short of our buck-passing congressmen, can fire the bureaucrats who make them. Self-government is more faded memory than reality.
What’s more, nobody can possibly comply with the law because nobody can know it. And where, as in America, the law regulates nearly everything a citizen does, a citizen’s life is full of invisible legal traps. Losing federal funding is the risk posed by some of these traps. But others will strip a citizen of his business, his job or his freedom.
Even the most lawful and conscientious citizen can fall into jail by tripping over some arcane regulation about recycling bottles or packaging lobsters.
It’s bad enough that bureaucrats fuss over the little details of our lives. But where things go from bad to worse is when bias creeps in.
Some bureaucrats are doubtless well-intentioned, albeit in the overbearing way that nannies supervising unruly children are. But some are not. Some of them are power-trippers. Others are discriminators. Some are both and enjoy using their power to harm people they don’t like.
In the case of the candle in the hospital chapel, it could be that the hospital’s regulator just loves rules for rules’ sake. The finger-wagging type: "Well, technically the law does say all flames must be supervised at all times."
Or perhaps the regulator hates religious organizations and people.
It would be easy to rummage through the hundreds of thousands of laws to find one or two to throw at religious people or any other group of people a regulator dislikes.
There are too many rules for people to know, so they cannot conform their behavior to them. And there are too many rules for bureaucrats to enforce equally, so bureaucrats are free to pick and choose their targets.
This is the greatest problem of a system of administrative laws: it tends to become a system of no laws at all. It replaces the rule of laws—general, equal and knowable – with the rule of men who enforce unknowable decrees unequally and with absolute discretion. And so 10,000 little rules become 10,000 little tyrannies.
If there is to be any hope for self-government and for the rule of law, America must abolish administrative rule.
This piece originally appeared in Fox News