Philip Hamburger has proved nothing by calling government employees “little kings.”
His argument is circular: government employees are little kings; kings are unaccountable; therefore government employees are unaccountable.
(You could classify it either as the “definist” fallacy or as begging the question.)
But it’s so obviously false. They are employees; they have bosses; they can be fired; they have to obey the law.
Even more importantly, Hamburger paints a ridiculous picture of the relationship between laws and regulations. He ignores the simplest, most basic principle: that laws passed by the Congress cannot realistically spell out every little implementation detail. Government agencies—staffed with experts and professionals, overseen by the Executive Branch—are thus tasked to define what the laws mean in more specific situations and in practical terms. Without that, confusion would reign, and the courts would be swamped.
Certainly some regulations—and some legislation—are written better than others, and any regulations that violate the spirit or letter of the law can be (and sometimes are) legally challenged. But Hamburger’s implication seems to be, no specific regulation is ever legitimate, because Congress didn’t vote on it. Unless Congress can spell out every detail for every circumstance, apparently, they shouldn’t do anything. We’ll let companies decide for themselves what is okay to dump into our rivers. We’ll let payday lenders decide what tricks are okay to use.
Of course, it is a well-known problem that Congress is becoming dysfunctional and unable to act. Partly due to partisanship. For example, House Democrats have drafted and passed hundreds of bills, but the Republican Senate has passed very few of them. If anything, though, this places a greater burden on agencies to do more and use their best professional judgment.
Instead of trying to smear government regulators, it might have been more useful if Hamburger had explained to us what particular kinds of regulation, in his view, are bad.
Finally, Hamburger warns us:
Partly true… businesses’ freedom to flout our laws does diminish. But are our own freedoms diminished—or increased—when we have less need to worry about getting screwed, injured, or fooled, and when our country’s future is better protected?