More on this book
Kindle Notes & Highlights
Started reading
February 18, 2025
by limiting the discretion public officials have to do bad, the Jeffersonian agenda also narrows the path for other public officials to do good.
The ability of presidents, police chiefs, social workers, public authority executives, and others to exercise discretion has been severely curtailed. In many cases, too many disparate voices now wield a proverbial veto.
In the decades that followed the 1960s, progressivism became a movement defined by the parks department unable to rebuild ice skating rinks, and the railroad unable to build a train station—a movement of social justice activists unable to act against brutal cops, of climate activists incapable of delivering clean energy, and of housing activists incapable of erecting new homes. By tipping the scales too far from Hamiltonianism, and too far toward Jeffersonianism, progressivism became, in short, a movement of do-gooders unable to do enough good. The diffusion of power hasn’t just undermined
...more
whatever had been lost in the spirit of deregulation—the employee benefits, the cross-market subsidies, even, in some cases, the quality of service—the flying public enjoyed more options at lower cost.
Roosevelt’s intention wasn’t to divine new power for the federal government, exactly. Rather, he wanted to vacuum up authority where it had previously existed and deposit it in new expert-controlled bureaucracies.
The regulatory state, as it evolved, wasn’t merely preventing an excess of competition from upending the economy, as Theodore Roosevelt and George Perkins had imagined a half century earlier. It was being used to weigh economic growth against other noneconomic interests.
The Federal Register compiling government decisions grew from 2,400 pages in 1936 to 20,000 in 1970, to a remarkable 60,000 pages in 1976.
A decade after Brown v. Board of Education had illustrated how the Supreme Court could deliver on progressive desires, progressives began to think more expansively about how the third branch of government could serve their interests moving forward.
Certainly it could not have felt to the ordinary citizen as though government was more accessible, or understandable, or responsive. Who ultimately made the decisions? Who really wielded control? Now, there was no Moses-type figure to rail against. Power had been diffused. If anything, the process had become more Kafkaesque.63
But the precedent set during Nixon’s tenure now applied in Carter’s. Was it good for reformers to strip the secretary of Health, Education, and Welfare of the power to set his own bureaucracy’s priorities—particularly when the secretary was as liberal as Joe Califano? The federal judge overseeing this single case had essentially become the agency’s puppeteer.65
Administrative Procedure Act
Governs how federal agencies develop and issue regulations. It establishes minimum procedural requirements for agency rulemaking and adjudication. And sets out procedures for judicial review of agency actions.
It was that the APA’s requirement and the subsequent jurisprudence requiring decision-makers to apply the correct standard to each decision had effectively turned once powerful civil servants into pencil pushers.67
If government had gone wrong, progressives told themselves, it was because ordinary people hadn’t been able to get a word in edgewise. Fix that element, and things could be steered right. For that reason, voice became a kind of sine qua non for many in the movement.
at its most benign, participation is ineffective; but if given real teeth, it holds the potential to render government incapable of making hard choices.
the reality was, and is, that progress involves ratifying trade-offs that distribute burdens across communities, fair and unfair. And so a progressive agenda centered in almost every context on providing ordinary citizens with new tools to thwart that centralized authority—opportunities to use their voice to lobby an official, to file a lawsuit, to register a complaint—too frequently fails to answer a crucial question: Who, after everyone has spoken, should make the final choice?
Government, in the end, needs to be able to make decisions that impose costs—and, in many cases, it needs to be able to do so with some degree of alacrity.
the Public Authorities Control Board (PACB),
Gianaris found himself in a tough spot. Exercising the veto might be bad for New York, but failure to put his full weight behind Ocasio-Cortez’s opposition would make him a pariah to her supporters.
Serving as state rep on PACB (has a veto)
Whether or not Amazon’s proposal was worthwhile, no single state senator should have the authority to scuttle a deal of this magnitude on his own.
The Death and Life of Great American Cities,
Some of the objections were legitimate. But they quickly became vehicles to shroud the concerns wielded by existing residents looking to simply preserve their own home’s value. And so, without much notice, insider zoning became exclusionary zoning.
With that said, the composite effect of all these objections has drastically curtailed the nation’s supply of homes.
the new system was so rife with veto points that society had no way to meet the demand for homes.
Through the decades, journalists in California would regularly report stories detailing how CEQA had been abused, with project opponents invoking environmental concerns as the thinnest veneer for naked self-interest. The law required those proposing new structures to address nearly one hundred issues—noise, endangered species, traffic, etc.—many of which had their own subcategories. And opponents simply needed to find a flaw in a developer’s proposal to mitigate impacts on anyone to put the entire project on ice.
Progressives could seek to reestablish a planning mechanism that both allows for everyone to be heard (which Robert Moses never cared to do) and empowers some
centralized authority to make expeditious final determination, after weighing various national, regional, community, and individual interests.
if housing remains forever a symbol to ordinary citizens of why progressives can’t be trusted with power, the movement undermines its own viability. To make a serious claim on shaping the nation’s future—to offer a more compelling argument than the conservatives, populists, and demagogues—progressives need to make the public-sector work.
Section 4(f) remains on the books today, modified only on the margins, and subject to the same interpretation. Anytime a federal transportation dollar is invested in any improvement—any new road, or high-speed rail line, or pedestrian bridge, or bike trail, or airport, or seaport—that has any significant bearing on a bit of public green space, it must undergo a 4(f) review. The impact has not been to make it entirely impossible to build new infrastructure in the United States.31 Rather, the change has impacted who chooses to build what. Justice Marshall’s ruling was apiece with a whole range
...more
73 In each case, provisions that appeared to empower the bureaucracy, or to focus its mandate, served more directly to open discretionary decisions to new examination through the courts.
But Justice Thurgood Marshall’s opinion in Overton Park,
fundamentally altered the dynamic.
if the process used to reach that decision was in any way defective or deficient, outsiders were entitled now to sue on the grounds that the review had been insufficient, and courts were willing in certain circumstances to shut them down.
The once powerful bureaucrat’s burden under the new regime wasn’t to engineer a road, or a rail line, or whatever else—it was to navigate the requirements and obstacles, to create a record of each factor contributing to a decision, and to anticipate the lawsuits that were sure to be filed against any decision.
as much as a quarter of the increased costs had been driven explicitly by the cost of litigation.
Rather, the foundation of progressivism’s frustration, and the genesis of America’s general skepticism of government, is the reality that there are too many hurdles to clear, crosses to bear, and vetoes to avoid.
Samuel Insull,
In the old vertically integrated model, a regulator might have had the leverage to lean on that utility to build the required transmission line—promising, most likely, to allow that utility to charge customers higher fees to cover the costs. But in a deregulated marketplace, that leverage was gone.
This was, at root, a failure of process. The succession of hurdles a proposal like Skelly’s had to clear, and the absence of any centralized authority capable of pushing past entrenched resistance, made it practically impossible to pursue. In a system full of vetoes, no one has sufficient power to push through a worthwhile endeavor.
The movement had very purposefully granted various countervailing concerns with what amounted to vetoes. And while each veto may serve to protect a worthwhile interest, piled together they almost inevitably foment paralysis.
Everyone is boxed into pursuing their own interests even as the proverbial asteroid speeds toward Earth.110
To that very point, we’ve now reached the other inflection point in the cycle,
