Government by indirection

Many people naively believe that if government officials exceed their authority, there is always a judicial remedy that might be sought in court, to find that usurpation has occurred and refuse to support it. However, officials in general, and legislators in particular, have learned ways to use government power to achieve their ends without providing victims with points of legal attack. We may call this, for lack of a better term, government by indirection.

This technique may perhaps have been inspired by Henry II, who got rid of Thomas Becket by remarking to aides, "Will no one rid me of this turbulent priest?" (some accounts say "meddlesome" instead of "turbulent"), who took it as an order to kill Becket, but leaving Henry with deniability that he had intended that result. History tells us Henry wore sackcloth as penance for his negligence, but that he did not prosecute the assassins, who escaped with little consequence.

The technique is essentially to issue only vague guidance to underlings, expecting them to go further than the actual words written or spoken, providing deniability and avoiding legal attack to the issuer of the words, yet also failing to act against the underlings, allowing their usurpations to stand. When the victim seeks redress, he finds the underlings shielded by official immunity and no laws or directives on which a legal challenge in court might be based.

This was done for the government killers in the incidents at Ruby Ridge and Waco.

The recently discussed "holes in the health care bill" are examples of this. This kind of thing has also been done with the rest of the tax code: Write it with holes that avoid judicial attack, but then encourage logic-challenged IRS agents to use the code, holes and all, to browbeat citizens with their own interpretations, knowing the courts won't stop them. Now the other holes in the tax code (26 USC and CFR) are just omissions, such as omissions of any definition of "income" or "taxpayer" on which a legal challenge might be pinned, but that has not prevented IRS agents from writing their own rules in the instruction booklets or making their "assessments" that have little or no connection to law or the Constitution.

We have an interesting example of a case in which "government by indirection" was pled:

328 F.2d 165
PORTLAND GENERAL ELECTRIC COMPANY and Publishers' Paper Company, Petitioners,
v.
FEDERAL POWER COMMISSION, Respondent.
CROWN ZELLERBACH CORPORATION, Petitioner,
v.
FEDERAL POWER COMMISSION, Respondent.
No. 18427.
No. 18432.
United States Court of Appeals Ninth Circuit.

February 7, 1964.

Petitioners argue that, by requiring the licensee to accept a license with the Article 9 provision for the giving of property free of cost for navigation, the Government by indirection is taking property without due process of law, resulting in confiscation.

36

This is not true because petitioners are not required to accept the tendered license. Any license rights which petitioners ever had to construct and maintain these project works expired in 1954. See note 3. In applying for a major license effective as of 1955, petitioners seek rights they do not now have. In order to gain those rights they must accept the license upon such terms as Congress has determined should be imposed in the public interest. See United States v. Appalachian Elec. Power Co., 311 U.S. 377, 427-428, 61 S.Ct. 291, 85 L.Ed. 243; Fox River Paper Co. v. Railroad Comm. of Wisconsin, 274 U.S. 651, 656-657, 47 S.Ct. 669, 71 L.Ed. 1279. It is not a taking for the Government to withhold a benefit it is not contractually or constitutionally obliged to confer. Nor is it a taking for the Government to impose financial obligations upon the recipient of a benefit if, as here, the benefit may be declined.

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Except, of course, that the "economic activity" being regulated is not getting health care, but running the risk of needing it and getting "insurance" for it, which must be paid regardless or whether one ever needs or seeks health care, or perhaps even be forced to accept health care without one's consent.

And of course every potential health care beneficiary is going to need a national ID card he will need to carry around with him at all times, and which, if the government finds he is critical of government, can, with a few keystrokes, designate him a "terrorist", "unlawful combatant", or perhaps a "fugitive child-molester cop killer", without conviction by a jury in a court of law.

A leading architect of such government by indirection, which he calls "libertarian paternalism" and some call "soft paternalism", is Cass Sunstein, recently appointed Director of the newly created Office of Information and Regulatory Affairs, popularly referred to as the "regulatory czar". His classic book on that is Nudge: Improving Decisions about Health, Wealth, and Happiness, with Richard Thaler (Yale University Press, 2008), in which he advocates "steering" people's decisions, not by direct coercion, but indirectly by coercing others in ways that create incentives to decide differently. The people "steered" can't challenge the constitutionality of the official acts coercing others, and those others will usually not incur sufficient personal injury for them to have standing to challenge those acts. The result is to achieve indirectly what could not be directly done constitutionally.

When one goes to vote and finds he is required to present this national ID card to be allowed to vote, and the balloting computers can track and report who voted and how, even though the votes are supposed to be "secret", then the last best remedy for tyranny will have been lost.

Thus does a constitutional republic get overthrown from within.