Americans can have a little fascism, as a treat

A modest proposal

This is my entry into the Boyd Institute’s essay contest on how America can improve its problem-solving capacity.

Our glorious forgotten past and who is to blame for letting it slip away

The Golden Gate Bridge was built in just over 4 years for $630M in today’s money. The Brooklyn Bridge took longer, over 10 years, but came in at a lower price, $518M in today’s money. The interstate highway system took even longer, over 40 years from conception to full completion, and cost a lot more too — but I’m being told it’s quite a bit longer than either of the bridges (unconfirmed at the time of writing).

Today these grand public works projects strike us as literally fantastical, built by a noble, now-departed race like elves. We live in their ruins, barbarians looking up in wonder at aqueducts. We can’t do it anymore, we don’t know how. San Francisco takes over 4 years and $14M to reopen a handful of existing bathrooms on the BART. The Second Avenue subway expansion cost over $1B per station, and the current phase is projected to cost over $4B per mile of track, still unfinished after 10 years. And the less we say about California’s boondoggle of a high-speed rail project, the better, but: the project has spent about $11B since 2008 on a train that is, as yet, imaginary, and is projected to cost $28B in a “zero risk” scenario in order to connect two cities in the central valley (notably not coming anywhere near to connecting SF with LA, which is what voters were promised, but Bakersfield is basically the same thing as LA when you think about it).

At the national level, legislation to approve large public works is mildly stymied since, by law, Congress is limited to passing a single gargantuan eighteen-thousand-page bill once per year. Nobody reads these bills or knows what’s in them before they vote on them, which is probably for the best. To the extent that they propose to build things or solve problems, it typically looks something like “Whereas: Americans need better access to veterinary gallstone procedures; we will expropriate $1.3B from the eleven top-earning taxpayers and give it to 1,067 NGOs to spread awareness of the symptoms of gallstones in domestic rats, mice, guinea pigs, jerboas, iguanas, and potbellied pigs¹”. Everyone pats themselves on the back for a job well done, the veterinary lobby all gets a raise, twelve thousand or so otherwise functionally unemployable art history majors get to keep their jobs for another year, and somewhere in Nebraska, the elderly jerboa of Mrs. Elvira Chalmers is spared a slow and painful demise. The system works.

Meanwhile at the state and local level, where the lead of appropriated federal tax dollars must be transmuted into the gold of earth-moving and construction, do-gooders invariably encounter a legal hedge maze thrown up by obstructionist boomers with encyclopedic knowledge of local zoning laws absolutely hell-bent on spending their children’s inheritance on an army of lawyers to impede the project at every step, no matter what it is. In southern California, an area so chronically drought stricken and water deprived that residents must by law replace their lawns with fearsome cactus gardens², boomers successfully blocked the construction of a massive offshore desalination plant that would have provided drinking water for tens of thousands of residents on the grounds that the slightly saltier water dumped back into the Pacific Ocean would make plankton sad.

Sure, there’s Baumol’s Cost Disease to consider when pondering why thing are so expensive and slow. And yes, we no longer have the testicular fortitude to write off dozens of workers plunging to their deaths as the cost of doing business³. But there is a much larger problem that harries and nips at anyone trying to accomplish anything in the modern American public sector: democracy. Not “electoral democracy”, i.e. voting — I mean the fact that every decision in public life, at every level of scale, is subject to an untenable number of stakeholders with a right to input. Notice must be given. Hearings must be held. Letters must be written and read. Studies must be commissioned. Lawsuits must be settled. And then whenever a 99.9th-percentile tenacity boomer wins a legal victory declaring their backyard the inviolable habitat of the Western crested beetle, we must do it all over again, from scratch. It’s unworkable.

A modest proposal

Let us slip into our care-worn leather Yarvin jackets and contemplate why it is that the will of the majority to solve problems can be so easily thwarted and incrementally postponed, costs ballooning at every impediment, and what we might do about it. Most proposed solutions involve doubling down on late-stage neoliberal technocracy: tort reform, regulatory streamlining, tripling the number of judges to reduce their backlogs. But here in the warm embrace of our leather, none of these ideas sit right. Technocracy is what got us here in the first place, isn’t it? When you’re in a hole, aren’t you supposed to stop digging?

Therefore I propose to cut the Gordian knot of citizen-institutional-obstructionism with the sword of executive power. Can you imagine what an executive with the ability to actually enact a mandate from voters could accomplish? Not the President, mind you — that’s too scary a prospect to even contemplate, I don’t kid myself that there would sooner or later be a drone strike with my name on it. And besides, the size of the women’s marches in protest would devastate the erotic werewolf novel industry, and who would stay on the job to care for Mrs. Chalmer’s jerboa in his time of need? No, when we play with a little bit of kingliness, or dictatorship, or fascism — choose your preferred euphemism or insult for an executive with the legal authority to get things done — we should take a lesson from the founding fathers and federalize it. No kings, certainly, I’ve seen the yellow signs being waved by geriatrics on street corners as well as you have. Very well. But what about Dukes, say? Or perhaps Counts? Maybe the odd Earl.

Picture the mayor of your city, or perhaps your county executive if you have those where you live, having placed upon his brow an elegant golden circlet, taking a vow to act in accordance with the will of the people who elected him. And then: acting in their interest, with the real authority to do so. A smaller, kinder monarchy, acting on a local level. What could such a mini-despot do?

Put down the phone, there is no need to call the ACLU tip line just yet! This is America, both the birthplace of and laboratory of modern democracy. We can imagine all sorts of ways to give our local executives useful amounts of power without torching our liberties at the same time. Here are some ideas.

The ex post facto veto

We have too many laws, at every level of governance, so many that a normal citizen cannot possibly expected to understand all of them and yet is held accountable for obeying them, ignorance being no excuse. Many of them are hundreds of years old, written by wigged racists who would spit tobacco on the floor of parliament before returning home to beat their wives for burning the stew. Most require an understanding of not only the black-and-white letter of the law, but also of the dozens of legal precedents set by court cases. They frequently conflict with one another as well as with common notions of goodness and sense. And we’ve only touched on legislative law here, not the morass of administrative rules that govern our lives in minute detail.

As a matter of practicality, we are very selective in which laws we enforce at any given time. Elected officials and bureaucrats alike have broad discretion to apply them or not according to their whims, with courts stepping in only rarely. And this is good! If we were to actually enforce all the laws all the time, we’d all be jailed for failing to wear an appropriate wig when arriving to our summons for operating our horseless carriage on a Friday during Lent.

But it’s also bad: bad, because it’s illegible and unpredictable. There’s no telling when some mouth-breathing, unelected pencil jockey with a chip on his shoulder will decide to make an example of one of us for getting a fourth cat while our neighbor gets away with buying a third illegal macaw that never shuts up.

Instead, let us invest the power to disregard inconvenient laws in a centralized place, in a person that we voted for: the executive. We already usually grant an executive the privilege to gainsay the legislature at the time of passage, the veto. But as we have seen this is far too limiting in practice. Let’s extend it to any time after a law has passed: the ex post facto veto. Just like with normal vetos, if a legislative body really likes their laws, they can keep their laws, with an appropriately overwhelming majority vote. But let’s make them vote to reaffirm the importance of banning miniature horses near school zones.

This is a lot of power, so let’s put some guardrails on it. Perhaps the executive can only retroactively veto laws older than 30 years or so. Perhaps he only gets to do this a dozen times per term. Maybe each city councilor gets a single counter-veto they can use. There are lots of interesting possibilities, and we can experiment across different cities and states to find what works best.

The executive carceral expressway

Nearly every city in America is currently plagued by a tiny number of unstable individuals assaulting strangers at random, smashing storefront windows, using the sidewalks as open latrines / drug dens, and generally making life miserable for their fellow citizens. Remarkably, most of the crimes for which these ultra-prolific repeat offenders are arrested are misdemeanors, which means they cycle quickly through the criminal justice system with little punishment, back onto the street to resume defecating in your entryway or assaulting your grandma⁴.

Removing even the 100 most troublesome such people from any particular city would be an almost unbelievable boon to the welfare of its residents, given the astonishing profligacy of their offenses against the public. In times past it was common for local law enforcement to convince such individuals it would be in their best interest to accept a one-way bus ticket to another city, but that’s unsporting and doesn’t solve the problem. So let’s solve it by jailing them more or less indefinitely.

Oh, calm down, Senator. We’ll give the mayor the legal authority to do this by creating a new offense of “offending the mayor with lawlessness”, granting the mayor the power to jail any denizen he chooses for increasingly long durations after they rack up enough misdemeanors. There’s no need to be cruel, and in fact punishment isn’t the point of this measure — the happiness and safety of the rest of the city is. So we’ll provide our handful of super-offenders with truly luxe accommodation and the public will still come out ahead in emergency room savings alone. Like all law in practice, our mayor will apply this power relatively sparingly, and he wouldn’t need to use it much. It’s difficult to overstate the amount of damage caused by the top 0.5% most prolific offenders, and there simply aren’t that many of them.

It must be acknowledged that this power could easily be abused, and that’s a fair cop. But with every used needle or pile of feces I have to step over on a public sidewalk I become more inclined to call this downside a fair trade. Let’s give tyranny a chance.

The judicial heave-ho

Everyone can agree that the judiciary is the problem with our current legal paralysis or regressive backslide, depending on which side of the bad orange rocket man you find yourself. There’s relatively little argument that judges wield a frankly unseemly amount of power over our lives and over their putatively co-equal branches of government. They can declare laws null and void at will, thereby overriding the will of the elected legislature. They can free convicted criminals on the thinnest of technicalities, thereby overriding juries of their peers. They can issue binding legal orders that cannot be countered except by a ruling from a higher court, which takes months or years. Judges claim a level of power that the legislature and the executive would kill to have. What’s more, a great number of them are appointed, not elected, to lengthy terms from which they are very difficult to remove.

Let’s change that. Troublesome judges have plagued the efforts of problem solvers and reformers since the beginning of the republic, with very little recourse available to either officials or the voting public who end up on the wrong side of a gavel bang. But there’s no reason to tolerate these enrobed menaces who derail our efforts at change: simply remove them from office when they overstep their power, by executive order.

Here I will plead incompetence as to the details of how this would be best accomplished. Judges are a crafty lot, and undoubtedly will find a legal basis to disqualify limits to their power, especially easier removal. This tradition is long and proud and stretches back to the very early days of our system of governance, and the court is very enthusiastic about discovering new powers people didn’t think they had.

But that’s no reason not to try! Let’s get creative. Somewhere in America lives a small town mayor who just had his pet legislative agenda of installing more bike lanes toppled by a judge serving a lifetime appointment, appointed by his predecessor with whom his family has been feuding for six generations. To that mayor I say: step up to the plate sir, pick up the gauntlet. The Hon. Judge Hatfield has made his ruling, now let us see him enforce it.

These are serious proposals, not jokes

Except for the ones that you find personally offensive and beyond the pale. Those ones are jokes, but the rest of them are serious.

America remains a sharply divided country. Perhaps this is the normal way of things, and we were lulled into a false sense of unity by Bill Clinton’s saxophone solo on the Arsenio Hall show. Or maybe it’s truly unprecedented and we are fated to descend into a barbarous and protracted civil war with sides delineated by whether one lives closer to a Walmart or a Trader Joes⁵.

But division shouldn’t stop us from figuring out how to let the majority get what it wants, especially on the local level. There’s no reason we must consent to be governed by the most obstreperously obnoxious minority with the most time and money on their hands to hire the best legal team. Democracy means that everyone gets a voice, sure; but, having gotten that voice, perhaps they would deign to get out of the way and let the majority govern as they see fit?

If you will allow me to slip into my cozy leather once more, power in America has a legibility problem. Nobody knows who is responsible for anything, because in practice responsibility is so diffuse there is often no one to blame, let alone someone able to wield power to address our grievances. It has been proposed by people much smarter than me that making power legible once more, by making it so that the person everyone acts as if has all the real power when exercising their franchise actually does have that kind of power, would result in greater responsiveness of government and increased effectiveness of our shared institutions.

Is this hypothesis true? Beats me. But I think it’s worth a shot, don’t you? Or were you happy with how things have been going, on the issue you care about most? And there’s no reason we need to start with the prize pig of the Presidency, we can eat this whale one bite a time. Let’s start small, by granting various new powers to America’s mayors and county executives. Let’s let the laboratories of democracy really cook and see what they come up with.

Let a thousand mini-Mussolinis bloom.

1. Fiscal conservative champion Holden Bloodfeast blocked the inclusion of dogs and cats, which would have ballooned costs to $1.2T

2. Also helps with vagrancy to be fair

3. Their widows received very impressive edible arrangements, which considering it was the 1930s is really a nice gesture

4. The coverage on the incident in Seattle has a truly incredible quotation. The suspect, who hit a 75 year old woman in the face with a board with a nail in it, blinding her, was well known to police as a problem. However, according to EMT professionals: “He’s a regular. He usually punches. I guess today he decided to escalate from his usual.”

5. What kind of American are you? A Whole Foods American or a Bass Pro Shop American?