In a recent book review for Federalist Society Review, JWI Affiliated Attorney J. Kennerly Davis offers a critique of the philosophical grounds that undergird the progressive regulatory state, and offers what he sees as a preferable alternative to the "status quo" proposal of Thomas A. Lambert in "How to Regulate: A Guide for Policy Makers." Davis argues that many of the ills plaguing today's expensive, inefficient, and increasingly overbearing regulatory state can be traced back to a flawed theoretical framework. At the heart of the progressive regulatory tradition, Davis finds the mistaken conception of their being a class of technocratic administrators capable of, and expected to, implement "threat-backed top down" regulations that increase a nebulous idea of "social welfare" by correcting for those "market failures" that occur outside the reach of the common law regulations regarding rights to person, contract, and property. Davis' way forward involves recovering an older, non-progressive standard by which to judge the regulatory state, one which is properly situated within the rule of law in accordance with the Constitution and the broader project of the Founder's to establish and preserve a regime in accordance with the natural rights of its people. "Regulating Under the Rule of Law" Excerpts: At the center of the progressive regulatory system stand the all-knowing expert policymakers—schooled in the social sciences, law, and public administration, fully informed, disinterested, technocratic—operating outside the realm of politics, freed by a reinterpreted Constitution and broadly written statutes to exercise their professional judgment to remedy any market failures they think warrant their attention. By permitting and prohibiting, rewarding and punishing, allocating and re-allocating the resources of society, these experts use their threat-backed top down executive directives to adjust and recast the arrangements that private persons have made in the belief that such top down reordering will increase the welfare of society as a whole. Three basic concepts support the traditional progressive regulatory system and justify its operation: (i) the idea that market based arrangements among private parties routinely misallocate resources, (ii) the idea that government policymakers are capable of formulating executive directives that can correct private ordering market failures and optimize the allocation of resources, and (iii) the idea that the welfare of society is something that actually exists separate and apart from the individual welfare of each of the members of society. Each one of these concepts is fatally flawed. None can be relied upon to justify the operation of the administrative state, either as it is or as Professor Lambert wants it to be. As everyone knows, the existing regulatory system is pervasive, all-encompassing, and controlling. It is, therefore, profoundly mistaken to begin the analysis of an economic problem with the assumption that the problem arose as a result of a lack of regulation. For example, traditional progressive analysis blames the 2008 financial crisis on the greed of bankers, builders, and other private parties. Greed is a facet of human nature and always present to some degree in the actions of private parties. Greed certainly played a part in the financial crisis, but to conclude that greed caused the crisis is to ignore the regulatory failures and flawed public policies—including affordable housing policies, lapses in regulatory oversight, rating agency failures, and cheap money policies advanced by the Federal Reserve—that made significant causal contributions to the crisis. Considering the pervasiveness of the current regulatory system, it would be much more accurate, and potentially more useful, if policymakers began their analysis of an economic problem by assuming a regulatory failure. …in addition to lacking the information and objectivity needed to allocate resources efficiently, the expert also lacks the legitimacy to allocate resources lawfully. Our constitutional system clearly divides the legislative, executive, and judicial functions among three branches. Wilson and the progressives rejected this constitutional system and consolidated all these functions in the powerful and politically unaccountable executive expert. The Founders realized that such a consolidation of power defined the essence of tyranny. They established a system of separated powers to secure their natural rights and protect liberty at the expense of efficiency. The progressives reversed these priorities and instead sought efficiency at the expense of liberty. Considering the limited information available to policymakers, and their revealed lack of objectivity, it appears that we have sacrificed liberty to seek efficiency and now have little of either. The American people have many different policy preferences, and they value things like atmospheric decarbonization very differently. In a constitutional republic, the efficient and effective and lawful way for all of those different viewpoints to be filtered and mediated and aggregated is through the actions of the elected representatives of the people in Congress, not through the actions of unelected and unaccountable policymakers issuing top down directives from their positions of unchecked power in executive branch regulatory agencies. Prime Minister Margaret Thatcher once pointed out that there is no such thing as society. Society is not a collective entity; it is a free association of sovereign individual citizens who met in convention to constitute a government to which they carefully delegated certain enumerated powers.  While prosperity, progress, and efficiency are significant positive attributes of a system of governance based on the rule of law, they are not the most important. By far, the most important attribute of such a system is a genuine institutionalized respect for the natural rights of each sovereign individual citizen, and a genuine institutionalized commitment to protect the political and economic liberties necessary to exercise those natural rights. All regulations should be based on this kind of respect for the individual. Policymakers should not approach their task as physicians—as superior technocrats working to correct the errors of their inferior fellows in order to improve the health and welfare of a fictitious collective abstraction called society. Rather, policymakers should approach their task as humble public servants charged first with respecting and protecting the natural rights of the individual citizens they work for. Policymakers should review the private arrangements of their fellow citizens with the genuine respect and deference they deserve. And policymakers should never take any action to disturb the private ordering arrangements of their fellow citizens unless that action is clearly authorized by a statute enacted in Congress by the elected representatives of those citizens. Read the full essay here: