The article argues that excessive legal regulations and fear of authority have paralyzed American governance. It contrasts historical examples of effective government action with current bureaucratic gridlock, advocating for a return to systems that empower officials to use judgment while maintaining accountability.
Key Takeaways
•Historical examples like FDR's Civil Works Administration and recent infrastructure repairs show government can act quickly when officials have authority to use judgment.
•Post-1960s governing philosophy replaced authority with legal micromanagement, creating millions of regulations that now paralyze decision-making.
•Replacing human judgment with rigid legal processes has made achieving public goals nearly impossible, benefiting only those who can game the system.
•The solution isn't autocracy or doubling down on red tape, but creating frameworks that define officials' responsibilities, allow judgment, and ensure accountability.
•Pilot projects demonstrating simpler frameworks could help Americans overcome their fear of authority and restore functional governance.
But a government that works is one that lets people use their judgment. Illustration by The Atlantic. Source: Bettmann / Getty.In November 1933, President Franklin D. Roosevelt created the Civil Works Administration to give jobs to the unemployed, and put his adviser Harry Hopkins in charge. The following week, Hopkins met with governors and mayors to ask for proposals. A few days later, he approved 122 projects, then another 109, and so forth.
Within four months, 12 million feet of sewage pipe had been laid, 255,000 miles of road had been paved, and numerous other public works had been built or improved. More than 4 million Americans were hired.
Americans have gotten used to the idea that our government is helpless to get anything done. Our public schools are lackluster, our infrastructure is crumbling, and defense procurement is mired in red tape. But our government has solved bigger problems in the past—and even, on rare occasions, in recent years: In 2023, Pennsylvania Governor Josh Shapiro fixed a fallen section of I-95 in 12 days. Operation Warp Speed developed COVID-19 vaccines in less than nine months.
Nothing gets done sensibly, however, merely by following rules. Hopkins achieved so much in a short time frame because he had the power to green-light projects, and he empowered officials below him to use their judgment in turn. Approval and procurement processes, such as they were, were ignored. When I-95 collapsed, Shapiro waived review processes and let his transportation secretary and a trusted contractor decide what to do. They trucked in light-weight glass aggregate from nearby recyclers to hold up the temporary highway—a smart decision that was made without delay.
Modernizing infrastructure requires trade-off judgments; legal processes can’t determine whether, for example, the benefits of a transmission line outweigh the harms of cutting through a pristine forest. Fairness in most public choices—managing an agency, making regulatory decisions—is dependent on circumstances, not rote legal compliance.
But that’s not how our government works anymore. Last year, The New York Times explained how a San Francisco public toilet could have a $1.7 million price tag and take as long as 18 months to approve and build. The example might be comical if it wasn’t emblematic of a broader trend: America has become a red-tape state with an almost pathological aversion to giving officials the authority to do their jobs. The country is stalled as a result, falling behind global competitors in almost every important category: infrastructure, education, defense. For America to function, we need to put people in charge again.
Americans have always been “jealous of authority,” as Alexis de Tocqueville put it. The constitutional debates turned on whether the document gave too much latitude to officials—“like a Fiddle, with but few Strings,” as one anti-Federalist put it, so that those in power might “play any tune upon it they please.” That argument led to the Bill of Rights, but even those amendments require officials to use their judgment—to decide, for example, what qualifies as an “unreasonable” search and seizure.
After the tumultuous 1960s, when America finally confronted segregation, pollution, and other social evils, distrust of authority became the organizing premise of public operations: There could be no more abuses of authority if no one had authority. Governing evolved into a system of legal micromanagement. Public decisions were dictated in advance by prescriptive rules, or had to be proved in public processes to be objectively correct. Individual rights were dramatically expanded, becoming not just a shield against state coercion but a sword to challenge any decision that a person felt was unfair. The historian Eric Foner has described the post-1960s governing philosophy as “a massive redefinition of freedom as a rejection of all authority.”
What replaced authority was law, and more law—at this point, about 150 million words of federal law and regulation. (The Constitution, by contrast, is about 7,500 words.) The granularity of these regulations, after more than 50 years of legal accretion, is far beyond the capacity of human understanding. Projects that were routine in the 1950s became almost impossible after the 1960s. The 1956 act authorizing the Interstate Highway System was 29 pages long; 10 years later, more than 21,000 miles of highway had been built. Projects today are bogged down by thousands of pages of regulations. That’s why getting approval for one small stretch of road can take years.
Supplanting human judgment with law didn’t work as some had hoped. Rather than striving for the common good, governing became a matter of navigating a legal maze, interrupted at will by naysayers. Laws to avoid social abuses such as racism and pollution are important, but empowering anyone to assert self-interested legal rights mainly benefits those with the will and resources to game the system. Legal processes, such as environmental review, should provide public transparency as an aid to decision making and accountability—and not be, as they are now, an end unto themselves. Human judgment can be reviewed by others—that’s an important role of legal processes—but it can rarely be validated under a legal microscope. Governing by legal micromanagement has made achieving public goals nearly impossible.
Donald Trump came to power, in part, because so many Americans had lost faith in a government paralyzed by decades of accumulated legal layers. Here was a man, people thought, who could make the trains run on time. But autocracy isn’t a replacement for authority. It doesn’t usually deliver, either, as the Soviets demonstrated with central planning. Making decisions at the top doesn’t solve issues on the ground, such as the need to fix schools and modernize infrastructure. Trump’s Department of Government Efficiency, for example, promised to get rid of wasteful government. But instead of cutting through red tape so that officials could use their judgment to get things done, DOGE fired officials indiscriminately, which led only to greater paralysis.
The alternative to Trump is not to double down on red tape; that would just result in future autocrats who ignore law altogether. What America needs is a governing system that defines officials’ responsibilities, lets them use their judgment, and holds them accountable for making good decisions.
Find any example of governing that works tolerably well—not just that of Hopkins and Shapiro but also the work of civil servants in the National Weather Service and the educators in every successful public school—and you will find people making judgment calls. The law offers crucial framing, but human responsibility is the activating force.
Replacing the massive legal and bureaucratic edifice we’ve built over the past half century will take time. A new generation of red-tape critics, calling for an “abundance” mindset, has suggested that the cure is simply to cut back the legal excess. Pruning the red-tape jungle won’t work, however, not only because there’s so much of it but also because whatever gets left will have been designed to preclude human judgment. For example, reforms in 2020 and 2021 to impose page limits and time limits on environmental permitting have done little to accelerate permitting, because there’s always another regulation that is mandatory: Did you do the study of historic buildings? Or give due consideration to Native American concerns?
The good news is that creating a framework that lets people use their judgment is far simpler than trying to micromanage daily decisions. The main challenge will be cultural. Most of the governing elite—lawyers, judges, officials, and experts—view the giant legal machinery as a state of nature. Allowing people to make decisions will raise fears of mini Trumps, even if they are subject to oversight by officials and the courts.
Americans are unlikely to get past their fear of authority until they see simpler frameworks in action. We need pilot projects in different realms to show how normal it is to let people take responsibility. Consider infrastructure permitting, which I’ve worked on for more than a decade, in which almost every choice requires a legal process. Meetings about the scope of environmental review can take months, followed by months spent deciding which consultant should do the required studies.
A simple framework would empower an official to set and enforce a timetable—for example, keeping environmental reviews focused and cutting off public commentary when the main issues have been aired. A single official would have the authority to make the ultimate permitting decisions, and another—someone in the White House working on federal permits, perhaps—would have the power to review those decisions. When a lawsuit is inevitably filed, the job of a judge would not be to second-guess these decisions but to decide whether any of them exceeded the scope of the official’s authority.
Reformers since the 1960s tried to build a government that is better than people. That experiment has failed. We need to put humans in charge again. That’s how democracy is supposed to work.
