Opinion | How Liberals — Yes, Liberals — Are Hobbling Government - The New York Times

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layout: post type: link date: 2024-03-17 18:00:00 -0700 title: "How Liberals — Yes, Liberals — Are Hobbling Government" link: https://www.nytimes.com/2023/02/07/opinion/ezra-klein-podcast-nicholas-bagley.html?showTranscript=1 permalink: /post/2024/03/17/proceduralism categories:

• procedure
• government

• politics

  Nicholas Bagley is a law professor at the University of Michigan, a former chief legal counsel to Gov. Gretchen Whitmer and the author of a fascinating paper called "The Procedure Fetish". In it, Bagley argues that liberals — liberal lawyers in particular — have helped hobble the very government they now need to act swiftly and decisively..

  Some great points in this interview on the role of rules:

  What’s a concern is what we put in place to try to protect against those risks. And I think far too often, we’ve defaulted to lawyerly, procedural rules to try to get agencies to do better. And I think we haven’t been reflective enough about the possibility that, look, if you’ve got an agency that isn’t living up to your expectations, layering a bunch of procedural rules on top of it and subjecting it to judicial review is probably not going to help all that much.

  And if we’ve got problems, we want to be thinking much harder about institutional design, about adequate budgetary support, about making sure they’ve got a clear statutory mandate, about getting good leadership, about fixing management problems. There’s a whole host of things we could do to improve the functioning of the administrative state.

On running an agency:

[I]f you are asking a group of lawyers how better to run a big institution, you’re asking the wrong group of people. [...] They’re not very good at running organizations. [...] It’s not something you learn in law school, how to run a government agency or — it’s just not part of the skill set.

On government legitimacy:

You write that, “Legitimacy is not solely, not even primarily, a product of the procedures that agencies follow. Legitimacy arises, more generally, from the perception that government is capable, informed, prompt, responsive and fair.”

And on public/private partnership:

[O]ne thing that’s become clear to me is that the private sector depends on an effective public sector in order to achieve its goals as well.

So right now, we’ve got a ton of money coming in, both private capital and also public capital for new investments in semiconductors and electric vehicles and renewable energy facilities, so all this money sloshing around. But all of these facilities require permits from the state. They require financial support, in some cases, from the state. They require literally parcels of land that the state often assembles.

Not to mention, they depend on a work force that the state has educated. They depend on a robust infrastructure, like transportation infrastructure, on water. I mean, if you are a private company looking to expand, looking to build these new businesses of the 21st century, you need a functional state. And crippling the state is bad for business.

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