Barry Brownstein
– March 17, 2022 @ American Institute for Economic Research
The Centers for Disease Control and Prevention (CDC) is committed to a vaccine solution for COVID-19. Bureaucrats at the CDC believe you can’t be trusted to see “critical” data on COVID hospitalizations or the effectiveness of the COVID vaccine boosters; you might “misinterpret” the findings and be less inclined to get vaccinated or boosted. The NewYork Times reports, “The performance of vaccines and boosters, particularly in younger adults, is among the most glaring omissions in data the C.D.C. has made public.” Perhaps the withheld CDC data mirrors recent Israeli data, which shows, for the second booster, vanishing efficacy.
When the new FDA Commissioner Robert Califf, says his top priority is to fight “distortions and half-truths,” he wasn’t referring to misinformation coming from government bureaucrats.
By withholding information, the CDC has been complicit in the firing of thousands of Americans from their jobs, many of them health professionals. You can hardly mandate something that doesn’t work as advertised and doesn’t prevent you from infecting others.
Dr. Pierre Kory explains how edicts from politicized bureaucrats have led to hospital protocols calling “for treating [COVID] with ineffective, expensive, and potentially unsafe drugs like Remdesivir.”
Ryan Cooper writes the “practice of shading the truth or telling straight-up falsehoods in service of some half-baked political end started from the first moments of the pandemic.”
University of California professor of medicine Dr. Vinay Prasad also decries the lies:
Throughout the pandemic, public-health officials have omitted uncomfortable truths, made misleading statements, and advanced demonstrably false assertions. In the information era, where what one says is easily accessible and anyone may read primary literature, these falsehoods will be increasingly recognized and severely damage the field’s credibility.
Prasad writes, “We must carefully remove the power we have granted public health, which has often been misused.”
Swinish Unconstitutional Behavior
In Vasily Grossman’s great Russian novel Life and Fate, two scientists are talking about their frustration navigating the highly politicized bureaucracy where a political error could result in being purged. Of the current bureaucrat in charge of their lab, one scientist says, “he’s not such a bad type.” Grossman, through another character, adds this teaching lesson: “By the way, do you know the difference between a good type and a bad type? A good type is someone who behaves swinishly in spite of himself!”
Generalizing the lesson, bureaucracies incentivize employees to betray the public trust. Employees may feel bad about what they do, but they do bad things, anyway.
Grossman was writing about Stalinist Russia, but his observations can be easily applied to the CDC or Fauci’s National Institute of Allergy and Infectious Diseases (NIAID).
Federal regulatory agencies and the bureaucrats running them are trampling on your rights. Columbia University Law School professor Philip Hamburger is one of the leading authorities on constitutional law. According to Hamburger, writing in his short book, The Administrative Threat, “Administrative power is a preconstitutional mode of governance— the very sort of power that constitutions were most clearly expected to prevent.” American bureaucrats are not fundamentally different from their counterparts in totalitarian societies. They are both unbounded by constitutional constraints; the only difference is in degree.
Before the Supreme Court decisions on vaccine mandates, Hamburger left no doubt about where he stood: “Rather than merely evaluate the Biden administration’s misdeeds—serious as they are—the Court should reflect upon its own wayward doctrines. Its departures from the Constitution have authorized, even normalized, the government’s departures. For this, the Court is to blame.”
Hamburger is referring to the normalization of administrative power. In The Administrative Threat, he is clear: “The Constitution establishes only regular avenues of power, and thereby blocks irregular or extralegal power. To be precise it blocks extralegal lawmaking by placing legislature powers exclusively in Congress, and it prevents extralegal adjudication by placing judicial power exclusively in the courts.”
Administrative mandates and rules are unconstitutional. “Through administrative power,” Hamburger argues, there now exists a third but “unconstitutional” way by which the “the executive purports to create legal obligation.” Administrative lawmaking is not justified as “delegated power.” Congress has no power to subdelegate its responsibilities to bureaucratic administrators. In short, administrative power, Hamburger writes, is “the very sort of power that constitutions were expected to prevent.” He warns that power wielded through government bureaucracies “binds Americans and deprives them of their liberty.”
Many citizens yield to administrative power believing we need experts, such as Fauci, to guide us. Hamburger cautions, “A person with specialized expertise will tend to overestimate the importance of that area and underestimate the significance of others. As a result, although experts can be valuable for their specialized knowledge, they cannot be usually relied upon for decisions that take a balanced view of the consequences.”
Hamburger was writing before COVID. Clearly, of the administrative agencies and bureaucrats threatening our liberties today, Dr. Fauci has led the charge. Fauci is arguably one of the most powerful unelected officials in American history.
To stem the tide of rising administrative power, Hamburger recommends that we “should bar judicial deference to agencies on questions of law or fact, as this violates due process and other constitutional limitations. Further, he recommends, “Congress should remove immunity for administrators — beginning with those who have desk jobs and agencies with a track record of violating constitutional rights.”
As Hamburger explains in his book Is Administrative Law Unlawful?, “Administrative law evades not only the law but also its institutions, processes, and rights.”
The Amorality of Bureaucracies
Among the horrifying passages in Life and Fate are those where Grossman describes in detail what went into building the gas chambers in Nazi concentration camps. Hitler, Himmler, and Eichmann didn’t pluck these horrors from thin air. Gas chambers were not among products sold in the marketplace. Thousands of actions had to be coordinated by a bureaucracy and military willing to follow insane and criminal orders. Tens of thousands of highly educated individuals had to follow orders.
Grossman has the character Obersturmbannführer Liss visit the Voss engineering works:
The Voss works had been entrusted with an important part of the order and Liss was satisfied with their work. The directors had devoted considerable thought to the project and were keeping precisely to the specifications. The mechanical engineers had improved the construction of the conveyors, and the thermal technicians had developed a more economical system for heating the ovens.
Writing in his illuminating but understated style, Grossman brings home the point that many well-educated individuals had to engage in this depraved process:
Liss refused an invitation to observe the experiments being conducted in the laboratory. He did, however, look through pages of records signed by various physiologists, chemists and biochemists. He also met the young researchers responsible for the experiments: a physiologist and a biochemist (both women), a specialist in pathological anatomy, a chemist who specialized in organic compounds with a low boiling-point, and Professor Fischer himself, the toxicologist who was in charge of the group.
Still, much more was needed. Grossman explains:
A railway track had been laid down, leading directly off the main line to the construction site. The tour of inspection began with the depots alongside the railway line. First, under an awning, was the sorting depot. This was filled with component parts of a variety of machines, tubes and pipes of every diameter, unassembled conveyor belts, fans and ventilators, ball-mills for human bones, gas and electricity meters soon to be mounted on control panels, drums of cable, cement, tip-wagons, heaps of rails, and office furniture.
Grossman continues with construction details and descriptions of people operating the camps. One such person was Private Roze, whose “job was to watch through the inspection-window; when the process was completed, he gave the order for the gas chamber to be emptied. He was also expected to check that the dentists worked efficiently and honestly.” The dentists were extracting gold dental work from those murdered:
At the end of each day one of the dentists would hand Roze a small packet containing several gold crowns. Although this represented only an insignificant fraction of the precious metal taken every day to the camp authorities, Roze had twice handed over almost a kilo of gold to his wife. This was their bright future, their dream of a peaceful old age. As a young man, Roze had been weak and timid, unable to play an active part in life’s struggle. He had never doubted that the Party had set itself one aim only: the well-being of the small and weak. He had already experienced the benefits of Hitler’s policies; life had improved immeasurably for him and his family.
The Party looked out for “the small and weak,” Roze reasoned. If Roze’s conscience was pricked, he could think, I am not a criminal; I am merely serving the “common good.” Grossman writes, “People struggling for their particular good always attempt to dress it up as a universal good. They say: my good coincides with the universal good; my good is essential not only to me but to everyone; in achieving my good, I serve the universal good.”
Complying with orders of bureaucrats to commit unimaginable atrocities, people can rationalize away their criminality. Grossman writes, “The air is full of the groans and cries of the condemned. The sky has turned black; the sun has been extinguished by the smoke of the gas ovens. And even these crimes, crimes never before seen in the Universe—even by Man on Earth—have been committed in the name of good.”
There are no gas chambers in America, and it is unlikely there will ever be. Yet, exercising extralegal power, an army of bureaucrats working for the CDC, FDA, OSHA have terrorized America, dividing Americans into the clean and unclean. As Laurie Williams writes, “An unelected government agency was allowed to classify us into ‘critical infrastructure’ and ‘nonessential,’ and confine many of us to our homes.” These bureaucrats, Williams adds, helped to teach us “to see each other as potential contagions, not potential collaborators.” These bureaucrats don’t have the terrible powers of bureaucrats in Nazi Germany or Stalinist Russia, yet I shudder to think what would happen if they were so empowered.
As with Private Roze, life is good for some who cooperate with COVID bureaucrats. Some have a vested interest in perpetuating the pandemic. Musa al-Gharbi, a sociology fellow at Columbia University, recently observed why academics and bureaucrats don’t want to let go of COVID:
A constellation of scholars, bureaucrats and pundits seem invested in COVID remaining a “crisis” indefinitely. As the political scientist Oren Cass put it, many have been granted more money, prestige and institutional power than they have ever had in the wake of the pandemic. For them, a “return to normal” would mean a return to being largely ignored and exerting marginal influence over society. It would mean losing new revenue streams they have grown accustomed to, and so on. In light of this reality, it is perfectly natural that many experts, administrators and “talking heads” would be disinclined to return to “normal” – loss aversion is a powerful cognitive bias. However, recognizing these impulses as banal (rather than nefarious) does not render them unproblematic. They can skew policymaking and expert advice towards continued invasive policies and a continued sense of panic in ways that are excessive and pernicious.
Ending Our Silence
The will of the voting public will often do little to reverse policies of unbridled bureaucracies. In his seminal Democracy in America, written in 1840, Alexis de Tocqueville explained that in Europe the basis of power was “the upper echelons of society,” whereas power in America began with individuals acting in associations, local governments and then states. Today Tocqueville wouldn’t recognize an America where power resides so significantly in an unconstitutional federal bureaucracy.
Yet, Tocqueville saw that centralization might one day lead to “administrative despotism:”
After having thus taken each individual one by one into its powerful hands, and having molded him as it pleases, the sovereign power extends its arms over the entire society; it covers the surface of society with a network of small, complicated, minute, and uniform rules, which the most original minds and the most vigorous souls cannot break through to go beyond the crowd; it does not break wills, but it softens them, bends them and directs them; it rarely forces action, but it constantly opposes your acting; it does not destroy, it prevents birth; it does not tyrannize, it hinders, it represses, it enervates, it extinguishes, it stupefies, and finally it reduces each nation to being nothing more than a flock of timid and industrious animals, of which the government is the shepherd.
The despotism of which Tocqueville warned is dawning. Overcoming it may seem hopeless, but the power of bureaucratic despots depends on the power we give them. Perhaps thousands of scientists working for the CDC and NIAID know they are enabling the lies of their bureaucratic leaders. Among them may be those who remain silent and do their jobs, as did Grossman’s scientists, chemists, thermal technicians, and mechanical engineers. Some will find their courage. When we find our voice and say enough is enough, perhaps Congress will restrain bureaucracies according to the recommendations of Hamburger. Some states are already acting to rein in the power of their state health bureaucracies.
Of Stalin’s crimes, Grossman shows how silence was an enabler of lies and horrors: “We remained silent in 1937 when thousands of innocent people were executed. Or rather some of us—the best of us—remained silent. Others applauded noisily. And we remained silent during the horrors of general collectivization.” Is that what the battle for freedom has come to, that the “best of us” remain silent?
As we find our voices, the pendulum of power will shift back in a Tocquevillian direction. In America today, a decentralization movement is growing, advocating greater local control. Continued erosion of public trust in federal agencies and government experts will hasten that movement.
While we wait for others to wake up, Grossman believes we can choose “everyday human kindness.” “Ordinary people bear love in their hearts,” he wrote. “are naturally full of love and pity for any living thing. At the end of the day’s work they prefer the warmth of the hearth to a bonfire in the public square.” Kindness, Grossman adds, “is what is most truly human in a human being. It is what sets man apart, the highest achievement of his soul. No, it says, life is not evil!”
Life is not evil, but bureaucracies often are cruel. America is regressing back to the early seventeenth century, Hamburger observes, in the manner of King James of England who governed via edicts from his Star Chamber. Of administrative power, Hamburger warns, “It is difficult to think of a more serious civil liberties problem for the twenty-first century.”
Barry Brownstein
Barry Brownstein is professor emeritus of economics and leadership at the University of Baltimore.
He is the author of The Inner-Work of Leadership, and his essays have appeared in publications such as the Foundation for Economic Education and Intellectual Takeout.
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