Libertarianism and Government Regulation

Reasons why we need big government regulation, bandwagon

There has been a lot of discussion about the administration’s efforts towards deregulation since Donald Trump took office.

The conventional wisdom is that Trump is “against regulation” and libertarians have, almost universally and enthusiastically, applauded this as one of the good things about Trump’s administration. Even libertarians who are generally very critical of Trump have made an exception in this area. In reality, however, there are serious flaws with the Trump administration’s deregulation efforts, from a libertarian as well as a practical perspective.

From a libertarian perspective, is the issue as simple as many people see it?

Are regulations bad, and thus all deregulation good, in the eyes of libertarians? I believe that it is not quite that simple.

In the hypothetical, “pure,” libertarian society, perhaps even a stateless one, government regulation might be unnecessary or extremely minimal.

Common law courts, property rights, and market forces such as boycotts, public pressure, good will and reputational interests, as well as other methods might be used to influence and “regulate” would-be polluters, for instance.

However, in our current political reality, these factors and incentives are secondary, as we have essentially delegated to government, and in large part to the federal government, the duty and power to protect the environment, prevent pollution, keep products safe, protect workers, etc. Not that our current regulatory structure does all that, of course, but at least that is the theory.

This is done by government edict, utilizing agencies such as the Environmental Protection Agency (EPA) and Federal Drug Administration (FDA), and cabinet departments such as the departments of Labor, Commerce, Housing and Urban Development, Transportation, etc.

I maintain that there are regulations which violate rights and others which do not.

If one prefers to use “libertarian language,” there are regulations which violate the non-aggression principle (NAP) and others which do not. Therefore, the idea that all regulations are bad is over simplistic, and not necessarily consistent with libertarianism.

What is the distinction?  For the purposes of this discussion, I am not judging the efficacy of the regulation in practice, merely the intent.

Regulations which seek to protect the environment, which can include others property, can be consistent with the NAP. Certainly, regulations which would restrict or prohibit direct harm to property and resources owned by others, whether individuals or companies, can be consistent with NAP.  Dumping harmful pollutants or toxic waste on to another’s land, or water, is a property rights violation, for instance. Regulations which seek to prevent or penalize that, are not inconsistent with NAP.  Air is a little more complicated in the sense that it is not as limited to one geographical area, obviously, but the basic precepts of property rights still apply, in my view.

What about when land or resources are not privately owned, or is owned by the government? Libertarians often question the premises behind, and utility of, “public” property, and state owned property, believing that property is better put to use, and protected, when it is in private hands. Whatever the merits of those arguments, the reality is that currently, much of the land and resources in the United States falls in to the category of either un-owned, or government owned.

I maintain that given the reality of public and gov’t owned land and resources, it is not necessarily a violation of NAP, or of individual rights, to prevent private persons and entities from causing harm to those resources.

What does constitute a rights violation, in terms of government regulation? Simply put, any regulation of consensual, voluntary trade, commerce, or other peaceful activity is a rights violation under basic libertarian principles.

What is meant here by “peaceful activity”?
Peaceful activity is any action that does not interfere with others personal (or property) rights, or damage the environment to which we all have a stake (as do future generations and yes, animal and plant life).

So for example, let’s take labor laws that “regulate” the amount of overtime employees can work, or the conditions in which they work. Yes, OSHA regulations, to the extent they forbid otherwise consensual employer employee relationships, are contrary to libertarian principles and the rights of individuals. So are most safety regulations, to the extent they dictate by legal fiat, choices and actions which should be decided by individuals acting in the market place (aka freedom).

If an individual wants to buy a car without seatbelts, airbags and warning noises when seatbelts aren’t used, and a company is willing to make and sell that car, gov’t should not interfere with that choice. If a worker wants to work 60 hours a week at the wages the company is willing to hire him or her, no “regulations” should prevent that consensual transaction.

Of course, there is no such distinction, or even an attempt at any, with the Trump administration’s random approach to regulation.  There is no overarching, guiding or consistent philosophy to their approach to regulation.

The Trump administration has actually dramatically increased some of the most onerous and impactful forms of regulation, for instance on trade and immigration. Increased taxation through tariffs is a form of regulating and restricting voluntary trade, and is clearly at odds with any principle of libertarianism.  Immigration restrictions are a “regulation” on free movement and association rights of people.

Trump has not enunciated any type of principle in what has amounted to a scattershot approach to alleged “deregulation.”

At first, their “policy” was, literally, “for every new regulation, get rid of two.”

Obviously, that is not a coherent, consistent, or practical approach to deregulation, but rather an empty accounting gimmick. It seems they are no longer utilizing this vastly overhyped trick.

The administration did put a “hold” on proposed regulations that were issued late in the days of the Obama administration, but most, if not all, administrations do that when they assume power.

The Trump administration’s approach is one of regulatory capture and crony capitalism. Political supporters of Trump, and other wealthy and influential companies, individuals and lobbyists have been rewarded with high level meetings with EPA officials and other administration authorities. Often the result of those meetings and pressure has been selective lifting or reduction of “regulatory burdens.” Not across the board or due to a coherent, consistent approach, but for some companies in some situations.

The all too popular, simple minded cheerleading by libertarians of Trump’s alleged “deregulation” is counter-productive and harms libertarianism. The left-wing statist caricature of libertarians as nothing more than “pro big business, anti-environment, pro-pollution right-wingers in disguise” is strengthened by this unthinking approach to government regulation.

In the vast majority of cases, libertarians (and conservatives) don’t even cite to any specific “deregulatory” acts of the Trump administration, they simply applaud the idea of “deregulation” in general. No distinction as to types of regulation, and the purposes behind it, is even attempted.

Of course, all of this is not meant to say that there is not some good that can come out of the random actions of the Trump administration in terms of regulation.  Certainly, there is an endless supply of ill-considered regulations and laws, that do not achieve their purpose, have unintended (or intended) negative consequences, and/or have an illegitimate purpose as defined by libertarian principles. Some of these “bad laws” may be stricken or at least scaled back just by chance, even if there is no guiding or coherent theory behind the administration’s approach, and that can be a good thing.

However it would be far more of a good thing if there was a rational and principled approach to regulatory reform, and that is sorely missing from the current regime.

* James O’Gallagher is an attorney, lifelong libertarian, father of two, and a sports fan.

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