Friday, November 15, 2013

The Regulator's Cucumber Syndrome

Gatestone Institute's Soren Kern on November 14th had an article, "EU Regulations: 'Dictatorship of the Bureaucrats'?" about the bewildering plethora of European Union regulatory laws.

In preliminary note-taking for this column, I tried to learn how many federal product regulations exist in the U.S.  The truth is that no one knows, not Congress, not the Federal Register – unless one was willing to undertake a major research project, which would entail going through every back issue of the Register, page by page, remembering to include current, pending legislation in the count – and not even the Library of Congress. One site's estimate in 2010 was that there were 40,627 laws in force in the U.S., covering everything from criminal law to product standards. That number is certain to have increased since then.

The Wall Street Journal's article of July 23rd, 2011, "Many Failed Efforts to Count Nation's Federal Criminal Laws," which focused only on federal criminal laws, was not optimistic:

"You will have died and resurrected three times," and still be trying to figure out the answer, said Ronald Gainer, a retired Justice Department official.

In 1982, while at the Justice Department, Mr. Gainer oversaw what still stands as the most comprehensive attempt to tote up a number. The effort came as part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the 1980s was scattered among 50 titles and 23,000 pages of federal law….

The project stretched two years. In the end, it produced only an educated estimate: about 3,000 criminal offenses. Since then, no one has tried anything nearly as extensive….

In 1998, the American Bar Association performed a computer search of the federal codes looking for the words "fine" and "imprison," as well as variations. The ABA study concluded the number of crimes was by then likely much higher than 3,000, but didn't give a specific estimate.

These studies excluded regulatory laws. But, violations of federal regulatory laws can overlap into criminal law. How else to explain the many individuals being arrested, jailed, fined and given prison terms for violating the "laws" of the IRS, the SEC, the  EPA, the FDA, or the HHS? This is an important issue that should not be overlooked. As our behemoth government swells even larger, more and more people will be charged with violating regulatory laws and meted criminal law "justice."

The Library of Congress would second the Wall Street Journal's doubts. In a post dated March 12th, 2013, "Frequent Reference Question: How Many Federal Laws Are There?," Shameema Rahman, Senior Legal Research Specialist with the LOC, cautions:

At the reference desk, we are frequently asked to estimate the number of federal laws in force. However, trying to tally this number is nearly impossible.

If you think the answer to this question can be found in the volumes of the Statutes at Large, you are partially correct. The Statutes at Large is a compendium that includes all the federal laws passed by the U.S. Congress. However, a total count of laws passed does not account for the fact that some laws are completely new; some are passed to amend existing laws; and others completely repeal old laws. Moreover, this set does not include any case law or regulatory provisions that have the force of law.

In a conversation about this topic, a friend asked me, “What about the United States Code?” The current Code has 51 titles in multiple volumes. It would be very time consuming to go page by page to count each federal law, and it also does not include case law or regulatory provisions.

While we are on the topic, would you like to know the difference between the United States Code and the Statutes at Large? According to the Government Printing Office, “the Statutes at Large, is the permanent collection of all laws and resolutions enacted during each session of Congress.”

Let us not forget the latest proposal by the FDA, that it will regulate trans fats in foods. A FrontPage article of November 14th, "If You Like Your Food, You Can Keep Your Food," reported:

Obama’s FDA is considering a ban on trans fat in foods. Like incandescent bulbs and cheap free market health insurance, margarine may become one of those things that you can no longer buy anymore. It will also mean that many other foods will either be banned, become more expensive or taste worse. The FDA had already mandated trans fat labeling on products.

The new ban would not protect anyone; instead it would take away the right of Americans to choose what they eat. Under the Pure Food and Drug Act of 1906, the FDA was created to prevent “the manufacture, sale, or transportation of adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and liquors.”

Milk, butter, cheese, ice cream, hot dogs, salami, French fries and eggs. The FDA has given itself the authority to ban everything from a glass of milk to a carton of eggs. And that’s not an exaggeration.

It's hard to decide. Which side of the pond is copycatting the other in terms of dreaming up new regulations and people-management laws: the U.S., or the EU? You can only be sure that the laws on either beach are as numberless as grains of sand.

And there you have it: No one knows how many federal laws, regardless of their purview, are in force and were created by Congress over at least a century. Abiding by all those regulatory laws costs Americans untold billions of dollars every year. Ninety-nine percent of them simply usurp individual and business choices and substitute a bureaucracy's fiat enforcement powers. The page count? It must be in the millions.

Now we turn to the EU, that great pile of bureaucratic hubris lording it over 28-member nations and shepherding their 500 million citizens to "energy efficiency, environmental friendliness, and health standards." Soren Kern notes:

European bureaucrats have…imposed bans or restrictions on thousands of…consumer products, including bananas, clothes dryers, cosmetics, cucumbers, fruit jam, laptop computers, laundry detergents, light bulbs, olive oil, plastic bags, refrigerators, showerheads, television sets, tobacco, toilets, toys, urinals and wine cooling cabinets.

 Kern prefaces his article with the EU's proposed cucumber law. Don't laugh. They're serious.

European Commission Regulation No. 1677/88, "Class I" and "Extra class" cucumbers are allowed a bend of 10mm per 10cm of length. "Class II" cucumbers can bend twice as much. Any cucumbers that are curvier may not be bought or sold.

There was a downside to this instance of sheer bureaucratic idiocy. The human cucumbers of the EU bureaucracy had to "bend":

Amid public outcry, Brussels eventually reversed its ban on curvy cucumbers—as well as on imperfectly shaped Brussels sprouts, carrots, cherries and garlic—as part of the EU's effort to cut "unnecessary" red tape.

That was "democracy" at work, the "voice" of the people, a voice which the EU rarely deigns to listen to.

Done chuckling? Have a banana:

Arguably the most famous examples of EU over-regulation involve rules on the physical appearance of fruit and vegetables. For example, European Commission Regulation No. 2257/94—also known as the "bendy banana law"—states that all bananas bought and sold in the EU must be "free from malformation or abnormal curvature."

According to the regulation, "Extra class" bananas must be of "superb quality," while "Class I" bananas can have "slight defects of shape," and "Class II" bananas can have full-on "defects of shape." The document states that the size of the banana is determined by "the grade, i.e. the measurement, in millimeters, of the thickness of a transverse section of the fruit between the lateral faces and the middle, perpendicularly to the longitudinal axis."

This is material rich in Monty Python humor. Imagine a skit in which the hapless European shopper must take a slide rule and a sextant to the fruit bin to ensure the store isn't carrying unauthorized fruit, and sells only "superb" and "slightly defective" cucumbers, bananas and cumquats. Imagine it, but know that these bureaucratic wonks are dead serious. They are drunk on the ambrosia of regulatory elitism. Only they have the faculty to define what is "superb" and what is not. They are the unelected, sumptuously salaried Platonic guardians of the crass, ignorant, materialistic hoi polloi.

But, wait! There's more! Les bureaucrates ne manquez pas un tour!

The vacuum cleaner ban was quietly approved during the summer holidays in August and went largely unnoticed by the general public until after the German newspaper Frankfurter Allgemeine Zeitung (FAZ) published a story about the new law on October 24.

"As of September 2014, only vacuum cleaners that consume less than 1600 watts may be sold in the EU," according to FAZ. "From 2017 only a maximum of 900 watts will be allowed. At the same time, the vacuum cleaner must be fitted with a label that grades energy consumption on a scale of seven letters and colors: The letter 'A' on a green background means very low energy consumption and the letter 'G' on a red background means very high energy consumption."

Before a European can finish his laundry, he will have to make sure his dryer is planet-friendly.

As of November 1, "the weighted condensation efficiency of condensation tumbler dryers must not be less than 60%," according to European Commission Regulation No. 932/2012 dated October 3, 2012 which implements "Directive 2009/125/EC of the European Parliament and of the Council with regard to ecodesign requirements for household tumble driers."

And the European soon shouldn't dare think of using a plastic bag or repair to his loo, john, or water closet without making sure that it, too, is planet-friendly.

On November 4, the European Commission—the executive body of the European Union—adopted a proposal that requires member states to implement measures to reduce the use of plastic bags. That same week, Brussels announced criteria to standardize the flushing of all toilets and urinals in the EU. The decision followed years of efforts by experts working for the European Commission's environment directorate, as well as "stakeholders" studying "user behavior" and "best practices."

Finally – and I'm sure Soren Kern could have continued with fifty more pages of examples – the European will not be able to pot his own plants or grow his own herbs or tomatoes without EU approval.

In May 2013, the European Commission announced the so-called Plant Reproductive Material Law, an Orwellian directive that would make it illegal to "grow, reproduce or trade" any vegetable seeds that have not been "tested, approved and accepted" by a new EU bureaucracy named the EU Plant Variety Agency. The new law would give Brussels authority over all plants and seeds bought and sold in all 28 EU member states, and would prohibit home gardeners from growing their own plants from non-regulated seeds. Critics say the new law is an effort by the EU to gain "total domination of the food supply."

Now, the thing to remember about especially European lawmakers and bureaucrats is that when they do back down and scrap a wholly fiat law such as the cucumber law because of populist dissatisfaction with it, it isn't because they've seen the light and realize that they've overstepped their mandate by violating the rights of their minions. No such connection takes place in their minds. It is because, for the moment, at least, the imposition is temporarily impractical. Abstractions do not germinate in their minds.

Nor do they in our own regulators, bureaucrats, and politicians. Their idée fixes are anchored to concretes, not actual ideas. They are as fearfully obsessed or fascinated with things as a prattling infant is with the shiny thing that goes round and round over his basinet or crib.

In my last column, "Modern Art: Fool's Gold," I quoted Ayn Rand on the subject of the shrunken epistemology of modern men, and particularly of politicians (and even Supreme Court judges, e.g., Chief Justice John Roberts deliberating incoherently on the constitutionality of ObamaCare).

Decomposition is the postscript to the death of a human body; disintegration is the preface to the death of a human mind. Disintegration is the keynote and goal of modern art—the disintegration of man’s conceptual faculty, and the retrogression of an adult mind to the state of a mewling infant….
To reduce man’s consciousness to the level of sensations, with no capacity to integrate them, is the intention behind the reducing of language to grunts, of literature to “moods,” of painting to smears, of sculpture to slabs, of music to noise.1.
By way of analogy, that is the starting point of an infant's consciousness, a pre-conceptual mind which would otherwise normally progress to the integrations of language, literature, painting, sculpture, and music – depending on an individual's willingness to think and integrate (and that is a matter of volition). An infant develops the capacity to integrate sensations, moves on to percepts of things, and ultimately to concepts.

But all American and European regulatory and welfare state political creatures share the same dark metaphysics and the same arrested epistemology.

So, in reference to events like the sale of an Andy Warhol montage of pictures of a car crash, reported by NBC News on November 14th, for another astronomical sum, Warhol's obsession with concretes in all his work is symptomatic of the current state of men's minds.

The prized eight-by-13-foot painting titled "Silver Car Crash (Double Disaster)" captures the immediate aftermath of a car crash, depicting a twisted body sprawled across a car's mangled interior. It has only been seen once in public in the past 26 years.

These are minds mired in a retrograde reduction of their consciousnesses to the infant level. For that is all they are doing: grasping the raw sense data of a car crash. Something like Delacroix's painting, "Liberty Leading the People," is beyond their perception. They may see it, and even perceive the human figures in it, but its theme, composition, and spirit are beyond their capacity to capture – or value. Smashed metal and twisted bodies, however, are the limits of their perceptual awareness of reality. They must be prohibited. People must stop smoking, eating un-curvaceous vegetables and fruit, drinking sugary liquids, using dryers and vacuum cleaners that use "too much" power, driving cars except by their rules, and an inexhaustible range of other actions employing entities that are perceived nemeses to such a creature's existence and emotional statis.  

Thus it is with bureaucrats and lawmakers who see concretes they think ought to be controlled, regulated, and even banned. They cannot (or will not) think beyond those concretes. Concretes existing and being valued and used by others represent threats to their existence. The ideological excuses – the environment, the "pubic good," and "public health," and so on – are almost irrelevant. The key to understanding a bureaucrat, or a politician, or an artist who focuses on sensations and concretes, is that they are adults who choose to remain at an infant's level of dealing with reality, but who have the supposed power to compel reality and others to conform to their perceptions. The consequences of wielding that power do not weigh much in their decisions to realize those perceptions.

All unregulated or uncontrolled things and actions are bad things, thinks the regulatory wonk and politician. My existence is meaningless, and even put in peril, unless I can control them. The universe is malevolent, unpredictable, out to get me, and my peace of mind can be only be guaranteed if these bad things are controlled or banished. Who am I to say what is bad or not? I am an exemplar of "public service," dedicated to advancing the "public good." (Thank God someone dreamed up those ideas!) I can be the apotheosis of selfless virtue without having ever lifted a finger or produced anything of value that anyone else would want. How others can be something and produce things is a mystery to me, it's a realm I don’t need or choose to explore, and I don’t have to concern myself with that, because I have been granted power of all those others.

This is the origin of power-lust: the compulsion to control reality by controlling the choices and actions of anyone in it. The next time you are frustrated with the stubborn obtuseness of a bureaucrat or politician who can't or won’t acknowledge your right to exist or act without his permission, know that you are faced with the equivalent of an infant in an adult's body, impervious to reason, ready to scream and whine and throw a tantrum if he doesn't get his way, still sucking on the teething ring of collectivism and the welfare state and totalitarianism-for-your-own-good, and able to thwack you with his lead-weighted rattle.

The time cannot come too soon when Americans and Europeans throw the baby out with the bath water.

1. "Art and Cognition," by Ayn Rand, in The Romantic Manifesto. New York: Signet/New American Library, 1971. pp. 76-77

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