It's not easy from here
"Please don't shoot at the red dots."
Well, it is easy from here. (Please read that first if you haven’t already.)
It would be easy. It would be easy if we were pointed in the right direction. Fortunately for our enemies, we are still pointed in the wrong direction. Since this will not change easily, I expect it to be hard. I even admit that I want it to be as hard as possible, since I think a change in direction is necessary. Only unbent reality can inflict that change.
Napoleon said: always focus all energy on the decisive point. Generally in a problem there are few decisive points. If you focus energy on other points instead, you may be pumping joules into a problem that can absorb infinite joules. It may heat up and turn white and even spall a little, but you are just not going to make any kind of a hole. Always consider the possibility that you’re heating a heat shield.
It is always exciting when you pump a lot of energy into some target. But you are always looking for some kind of threshold. What is that threshold, and how close to hitting it actually are you? Do you implicitly expect that 0.1% of the work can trigger some kind of autocatalytic process that will magically do the other 99.9%? Also: when an enemy bomber flies over you, and you see that it has red dots on the bottom where your friends already shot it—please don’t shoot at the red dots.
Case in point: from Senator Mike Lee of Utah. Senator Lee was a Supreme Court clerk for Justice Alito. He certainly knows his constitutional law. Shooting at the red dots, the Senator remarks:
To which the Dogefather responds:
That’s it. We’re cooked. (Unless it’s a cover story, of course.) It’s worth reading the whole thread—it is pure conservative coal. A complete blackpill. (In fact, it was clear that “based” was over as soon as a Senator put it in his handle. It’s ok, say “keyed.”)
To start the thread, Aaron Levie, a serious person who runs a major company, points out that the USG, which in FY2024 spent $6.75 trillion and received $4.92 trillion, can balance its budget by 2029 by spending just 3% less a year. He illustrates this with math. “Completely achievable,” he calls it, then takes an Uber to his condo on Pluto. He could ask Sen. Lee what it would take to persuade the Congress to cut federal spending across the board by 30%. Or 3%. I would buy a timeshare on Pluto first. Also, sadly, running a deficit is about the 20th biggest problem this screwed-up country has.
Nothing good will happen in these Untied States until the ghost of Ronald Reagan is banished forever from the Republican Party. What did I say about shooting at the red dots? In 1981, America was still a serious country. Compared to now, anyway. It is a fallacy to assume that we can pump more joules into the same target. We have less to pump. When we print out the final report of DOGE and put it on a shelf next to the 47-volume work product of Reagan’s Grace Commission, which will look more serious?
47 volumes! Think about all the people who put all that work into all those reports. Some of them must still be alive today. They must know that if none of this work had ever been done, the world 40 years later would not be even slightly different. Sad!
The basic problem is that there are three stages of political enlightenment and we’re stuck in the second. Or at least, Mike Lee and Elon Musk are stuck in the second. If they could ever get to the third, continents will shift. But they won’t. The stages:
Political symbolism is the same as political reality.
How can we make political reality match political symbolism?
What political reality works best with our political symbolism?
You can pump as many joules into #2 as you want. It is a heat shield. It will heat up and turn white and crackle and pop a little. Maybe some pieces will even fly off. But fundamentally, the system is built to resist the weapon that you are attacking it with. It has been resisting this same attack successfully since 1933, when it was deployed. Please stop shooting at the red dots.
What does Mike Lee want? He was a Supreme Court clerk, so he is at least as smart as you or me. In fact, the Senator is expressing an important doctrine in American constitutional law, the nondelegation doctrine. This doctrine went to sleep in 1933 and has never woken up. (Hilariously, the Wikipedia page for nondelegation in the US is just a link to administrative law—legislation delegated to the “executive branch.”)
What Mike Lee wants, in fact, is for the United States to revert to its previous form of government. From our Fourth Republic, which is a national administrative state, he wants to go backward to the system of the Third Republic, a national libertarian state. On its face, this seems not unreasonable. Perhaps the Senator has even walked around one of our major cities, and observed that every building in America worth saving, not to mention the whole American economy, was inherited from the Third Republic.
However, it is worth noting that as a matter of legal history, the “Constitution” is not a document of the Third Republic (1861-1933), but the Second (1789-1861). While our Fourth Republic, as it really exists, would certainly strike the historical drafters of this document as a bizarre mutation of their design, so would the Third. The Constitution describes a republic which is federal, not national—a entirely different form of regime. This is why we call states “states,” a word literally implying full political sovereignty. Few in the 18th century, or for that matter the first half of the 19th, could imagine the Union having either the right or the power to coerce a state to remain in the Union.
The real Fourth Republic is the bureaucratization of FDR’s de facto monarchy, as encoded in the Administrative Procedure Act of 1946. The Administrative Procedure Act, not the Constitution of 1789, is the legal foundation of the the administrative state as we know it today. (Well, if you don’t count the Civil Rights Act of 1964.)
Senator Lee’s hybrid reverence for the Second and Third Republics—he feels no passion at all, I fear, for the Articles of Confederation, let alone the Instrument of Government—is a classic case of wanting to make the reality match the symbolism. Obviously, as an American, I have to say it’s understandable. I think that in many ways, these regimes and the people who ran them were much better than ours.
But they were different regimes. Not only do they not exist anymore, but the forces which destroyed them remained—or so at least we must assume by default—active after their demise. We feel ourselves working against the natural forces of history when we try to restore them—often purely based on a mythical pseudo-history. Revived to gaze upon the present, the statesmen of the time would probably see the impossibility of restoring their past from our present—if only because they would so acutely notice all the ways in which the present is manifestly inferior to the past.
Yet there is method in the madness of Senator Lee, and of course of Elon Musk. Let’s look at the problem from the point of view of—if Allah will forgive me for using the word—the classic California libertarian. (He’s already unhappy that I used to be one.)
The libertarian notices that SpaceX has to submit a hundred-page report, or whatever, about the risk that their booster will hit a shark when it lands in the Gulf of Mexico. Then it has to pay a million dollars, or whatever, for someone with a master’s degree to read it. For three months. Or whatever. Whatever it is, it’s crazy.
Then they learn that this is not even the law. Oh no! It’s not a law. It’s a rule. Totally different thing. You see, laws are written, preferably on parchment, after some long parliamentary debate among statesmen in top hats who quote aphorisms in Latin. These statesmen were elected, on account of their well-known wisdom, by the holy and sovereign people. Vox populi, vox dei. That’s Latin too. Congress—it’s not just an archaic word for the sex act. Also, you have to look past the 13% popularity rating. (You can see how popular our Senators and Representatives actually are by the sheer number of people who regularly affix signs with their names to their own front lawns. Defacing your landscaping is the old American way to show deep loyalty and respect.)
So if it was a law protecting sharks from errant spacecraft, that would be one thing. If this activity was sanctified by holy Congress, fine! Fiat justitia, ruat caelum. Actually, though, we are just looking at a silly old rule, made not by lawmaking but rulemaking, not in the sacred United States Code, just the inferior Code of Federal Regulations. Every American voter, obviously, knows the difference.
So we have a viable legal theory, albeit a Third Republic legal theory, under which this absurd shark-rocket rule is no bueno. The nondelegation principle prohibits it. The nondelegation principle prohibits the whole Fourth Republic. But any port in a storm.
We start to realize why this dynamic tension between what the regime is, and what it pretends to be, exists. Everyone gets sucked into the lie. Everything about it offers an opening to special pleading—even for its enemies.
What would it actually mean to turn the administrative state into a libertarian regime? Let’s try to steelman this fantasy.
Administrative law is, of course, established by actual law. Congress is fully in charge. Congress just chooses to exercise its power by writing something like: the EPA shall make rules. About the oceans. And stuff. Then the EPA goes and writes all the rules it wants, so long as they are about the oceans. In some sense. These rules are just like laws, except they aren’t laws, they’re rules. Senator Lee objects to this nonsense, and rightly so—it’s half Orwell, half Carroll.
But what is his alternative? Of course it’s absurd for the US to spend any time or money on protecting Mexican sharks from falling rockets. Then again, it is not absurd for the US to prevent Elon Musk from using gigantic autonomous solar drift nets to vacuum up all the marine protein west of the Antilles, dry it, powder it, mix it with cricket flour, and send it to Mars as astronaut bars.
Today, this immense extractive project is barred by fishing rules in the Code of Federal Regulations. How would it work in Senator Lee’s revived libertarian Third Republic, in which the Congress does not “delegate most of its lawmaking power to unelected bureaucrats”?
Of course there is no real way to restore the nondelegation principle of 1925 or the libertarian regime of 1925. We can pretend, though. Because the Third Republic was operating under the same nominal Constitution as the Fourth, we can pretend to be turning the clock back on this or that—not as a way to actually turn the clock back, just as an excuse to get what we actually want.
It’s a port in a storm—just another club in the endless wrestle of Washington, DC. This is why the alliance between libertarian voters and corporate lobbyists has been so fruitful for the latter. The general principle of the former is their special pleading. Elon Musk definitely does not realize he is being herded into this trap. Does Senator Lee realize he is playing the Judas goat?
It is stunning to realize the Orwellian level of the language this regime uses for itself. Congress did not “delegate most of its power to unelected bureaucrats.” First of all, there is no actual delegation going on, because there is no actual executive branch. There is only an administrative branch, which is fundamentally a part of Congress.
Just as the President is not actually a president and does not actually command like a CEO, Congress is not a lawmaking body and does not actually debate or make laws. There are no meaningful debates. Bills are passed, but little of the language in these bills is anything the founders would recognize as law—it is budget, policy, procedure. It is administration. Congress has much the same role as the Central Committee in the USSR or the European Commission in the EU. But with elections. But no election in the lifetime of the Fourth Republic has come close to disturbing this system.
So at the level of his real job, Senator Lee just needs another weapon to give lobbyists what they want (and, of course, deserve). Nondelegation is just another legal device.
But at the level of the symbolic, Senator Lee wants to tell the story of a return to the Third Republic—a totally different regime than we have now, one in which Congress debates and passes laws, which are necessarily much more vague than the rules we have now, but much less vague than these “laws” which just delegate to the agencies.
In this libertarian republic, the law says something like: SpaceX must not cause any significant damage to the Gulf ecosystem. How do we tell what is “significant?” Well, we have a court. Strangely enough, we already use courts this way.
Hence Justice Sotomayor, probably not a favorite of Senator Lee, was so incautious as to blurt out at a symposium that “a court of appeals is where policy is made.” Then, our circumspect jurist remarked, “I know this is on tape, and I should never say that.” In the presence of the symbol, it is important to never mention the reality.
What’s weird is that libertarians like Senator Lee are supposedly not fans of “judicial activism” at all. Yet their antipathy to regulatory bureaucrats leaves a power vacuum that can only be filled by judicial bureaucrats.
At least the regulatory bureaucrats might have a chance of knowing something about either sharks or rockets. Senators and even their staffs are not going to become shark experts—they have to delegate it to someone. If the rules about what you can and can’t do to Mexican sharks are scientific rules written by oceanography professors, not case-law precedents written by activist judges, don’t they have a chance of making sense?
Maybe they do. But they don’t make sense. So obviously, something is wrong. But—isn’t a three-month politicized delay way better than some politicized black-robed dictator with a court? How did these things work in the Third Republic, anyway?
These things didn’t work all that well in the Third Republic—as all the prog history books will tell you. Environmental protection was not a strength. But also, what was great about America a hundred years ago was that it was still a Third World country in certain ways. Therefore, there was more lubricating corruption. You could always pay people to get things through. It was more like China—including the part about, like, actually making stuff.
It was a different system. It had different pros and different cons. If it was possible to migrating back to this different system, it would take just as much power as migrating to any other system. Or more—because the system is inherently allergic to its ancestor.
Once we accept that the Fourth Republic is our real regime, which cannot be inferred in any way from the Constitution, we are at stage 2 of the above. We know that the executive branch is not an executive branch, the legislative branch is not a legislative branch, and the judicial branch is not (just) a judicial branch. We are terrified by the realization that we are operating a completely unconstitutional regime and feel the immediate need to restore the rule of the holy Constitution, which will fix everything.
The moment of satori occurs when we drop our mythic attachment to the past. All that is required—if that—is that we keep the symbolism. We do not have to believe in any of it. American progressives have not actually believed in the Constitution for a century. They seem to be doing just fine with that. Why can’t we?
Rather, the question is: what form of government, consistent with the Constitution just as our present regime is consistent with the Constitution, would be ideal for America in the early 21st century? Once we know that form, how can we get there? FDR himself, in his First Inaugural, observed that the Constitution is no great barrier to any form of government. It could describe the Second, Third, and Fourth Republics. It will as easily describe the Fifth—which will be as different from the Fourth or the Third as the Fourth is different from the Third or the Second. History never repeats.
In a sense, when we acknowledge that the real and symbolic structures of government are different, we are saying that the Constitution has been hacked. In the language of security researchers, it has become a weird machine, manipulated in order to do a completely different job than its designers imagined.
American conservatives have spent the last 75 years trying to undo the hack. They are convinced that their mythic form of government, if actually restored to its “original” purpose (where “original” sometimes means 1960 and sometimes means 1790), would be the best government on earth. I see no evidence whatsoever to justify this faith. Frankly, I think there’s a lot more evidence for Mormonism.
If this is the wrong direction, what is the right direction? How about the opposite? What if we don’t need to unhack the system—what if we actually need to hack it better?
For example: we could restore the nondelegation rule and restore power to Congress. While this isn’t possible, it must sound good to Senator Lee, who is in Congress. And, as we’ve seen, the idea is a useful tool for his work in Congress—the actual Congress, the Congress that is not a debating society but an administrative committee.
But here is another idea. Suppose the nondelegation principle actually isn’t a problem. Suppose it’s fine for Congress to delegate its lawmaking power to become rulemaking power in the agencies. Well, then, it can delegate however it chooses.
Here’s what would be really cool, though.
Suppose Congress delegated its power, not to the agencies, but to DOGE itself? What would it take Congress to just let DOGE write the laws?
All and any of them? To simply pass DOGE’s edicts as bills, without even reading them? Don’t these statesmen, these top-hatted Solons of the law, already often pass bills without reading them—without even having time for their staffers to read them? They do. Where are these bills written? In some backroom. Where will they be written now? In some backroom. It’s just a different backroom, that’s all.
How does Senator Lee feel about this idea? How would he feel if Elon Musk, his best buddy from “X,” was like: we’re just going to write a bunch of laws and you’re going to pass them for us? Wasn’t this pretty much exactly what FDR did in his first 100 days? What’s so un-American about that?
Obviously Elon Musk does not desire anything like this level of power. No, sir. He does not want to build a giant rocket that can park a tractor-trailer full of lead in orbit. He just wants the government to save money! Yes, sir! He’ll pick up some Roman candles on the way home. Also, there is no way to put an 18-wheeler in space—are you crazy?
When we imagine the immense problem of making the United States government not a better version of what it is, not a past version of what it is, but just what it should be—even with the restriction that it still has to fit the old symbolic forms, which always turns out to be easier than it looks—we sense the immense amount of power needed for the job. Trump, Musk, and Co. are always talking as if they had this power—as if they could write legislation and order the Congress to rubber-stamp it.
To the extent that you think you have something, you have no way to get it. To the extent that American voters and politicians are convinced that they are actually in charge of Washington, and get to control it just because they won one Presidential election, the victory itself is sterile.
Once you imagine a world where the President could write rubber-stamp legislation, you see how hard it would be to repair and/or replace the USG even with this power. And if you didn’t have this power—your first project would be to find a way to get it. Your first project would not be to try to do the job anyway with 1000x less power.
The system has strong defenses against rolling history back. Its defenses against rolling history forward are much weaker. Is it legal for the Congress to delegate its lawmaking power to the executive branch? Gosh, it sure seems to be.
Why not stop delegating it to anonymous bureaucrats—and start delegating it to President Trump? Making America great again was never going to be easy. But if Trump can give us the law—as Lycurgus gave it to Sparta—it might actually happen. Or would that be going too far for you, Senator Lee?
That’s the thing about libertarian conservatism. It keeps selling a fantasy which it never delivers. It does deliver some real goods, but in a different way than it promises. And part of its fantasy is that we Americans can get what we want without taking any real risks, without making any real changes, without building any new systems, without losing any old illusions… all is as it always was. And nothing ever happens.