Or … 2025 is our 1984

There are several ways to destroy a generally well-functioning country. One is invasion. Vladimir Putin is trying that in Ukraine, cheered on by Donald Trump, Tulsi Gabbard and other Republican sycophants. Invasions are self-evidently messy. Lives are lost by the thousands, property is destroyed, and the psychological impact on all sides of the conflict can last for generations.

One can imagine that Trump’s stated desire to “own” Canada and Greenland (he would prefer the term “merge” no doubt, being a captain of industry and all) would, if anyone in his White House staff had the temerity to suggest this is a really bad idea, lead to Trump throwing himself on the floor, kicking his feet and screaming like the man-child he is: “I want it, I want it! I want it! Why can’t I have it?!! I’m now the king of the United States. Just ask the Supreme Court. I want it! Waaahhh!!”

But, of course, that’s not what’s happening. Despite being the largest collection of incompetents ever assembled, Trump’s “team” has discovered other ways to bring the country to its knees.

Most everyone has heard of, and many have read, the novel, 1984, by George Orwell. Wikipedia does a creditable job of summarizing the central idea:

The story takes place in an imagined future. The current year is uncertain, but believed to be 1984. Much of the world is in perpetual war. Great Britain, now known as Airstrip One, has become a province of the totalitarian superstate Oceania, which is led by Big Brother, a dictatorial leader supported by an intense cult of personality manufactured by the Party’s Thought Police. The Party engages in omnipresent government surveillance and, through the Ministry of Truth, historical negationism and constant propaganda to persecute individuality and independent thinking.

I don’t recall that the book explains how the world reached that state, but it’s not too hard to imagine when one recalls a little history. You know, Germany under Hitler, Russia under Stalin, to name a few.

We have Donald Trump. Many people thought Hitler was insane. Many people also think Trump is insane. He was elected to a second term in office despite grotesque failures of leadership in his first term, resulting in, among other things, the avoidable deaths of hundreds of thousands of Americans. Trump revealed himself fully between 2016 and 2021. His opponent in 2024 was an intelligent, accomplished person who has served as Vice President of the United States for four years, so she was also experienced in the highest echelons of government. BUT she was a woman, and she was of Asian heritage, and she was Black. Case closed. The American electorate chose to put the loon back in power.

And what did we get? Exactly what could be, and was, expected. Examples will follow in roughly reverse chronological order in the next post.

As an aside, first, I note that I am no wide-eyed dreamer. I have been around a long time, started my career as a federal employee in fact. The government of the United States, like all governments, has many “issues.” There are inefficiencies. One of the core driving principles of the government is “don’t make obvious mistakes.” A prime example is the rulemaking process. This is what often happens.

Congress adopts legislation. Even the most detailed laws are often the products of compromises that create ambiguities or simply leave major implementation details to later-developed regulations. The country prefers that approach to simply saying, “let the bureaucrats figure it out as they wish from time to time.” We have developed an astonishingly complex process to govern “rulemaking,” with the result that regulations can take years, literally, to produce after the enabling legislation has passed.

The process involves examination of the relationship of the law in question to many other laws having to do with economic impact, environmental impact and many others. This approach, long and tedious as it may be, is preferred to subjecting ourselves to the random, arbitrary decisions of people who may or may not know what they are doing and don’t want to take the time and effort to learn. Slow and steady wins the race in our system.

However, this approach has several strong advantages:

1. 1. All interested parties get to express their views and offer their evidence to the decision-maker(s);
   2. The process is designed to assure that the decision-making agency has all relevant information before it when it decides what regulations, if any, should be adopted;
   3. The process governed by the Administrative Procedure Act is very demanding, taking much time and effort by many federal employees, many of whom are highly experienced experts in the subjects being regulated;
   4. Court review is available to assure agencies adhere to the governing legal principles, assuring fairness to affected parties and that the process is properly executed;
   5. All the foregoing takes much time and effort, especially given that most federal agencies are working multiple rulemakings simultaneously, in addition to enforcement actions and other statutory responsibilities.

I will now describe in horrifying detail an actual rulemaking of the Department of Transportation. I participated in on behalf of my then-employer, the American Society of Travel Advisors. Try your best to get through it. The “FR” references are to the Federal Register which is a triple-column “book” published every workday in 7-point type (a bit over half the size of the print in this blog) and including proposed and final regulations by all federal agencies. You can get a feel for its scale from the page numbers. I included them in case you want to see the actual documents.

On May 23, 2014, DOT published a Notice of Proposed Rulemaking to “enhance protections for air travelers and to improve the air travel environment, including a proposal to clarify and codify the Department’s interpretation of the statutory definition of ‘‘ticket agent.’’” [79 FR 29970] The NPRM also proposed, among other things, “to require airlines and ticket agents to disclose at all points of sale the fees for certain basic ancillary services associated with the air transportation consumers are buying or considering buying.”

The NPRM consumed 32 pages of the Federal Register.  Comments were due by August 21, 2014.

Comments by interested parties were plentiful. And typically, they ran the gamut: the proposal is too broad, too expensive, not broad enough; you got this wrong, you got this right; the proposals are impractical and unnecessary; the proposals don’t go far enough … and many, many more.

On January 19, 2017, DOT issued a Supplemental Notice of Proposed Rulemaking to expand the scope of the original proposal:

In light of the comments on this issue, the Department is issuing this SNPRM, which focuses solely on the issue of transparency of certain ancillary service fees. The other issues in the 2014 NPRM are being addressed separately. [82 FR 7536]

The SNPRM consumed 24 Federal Register pages. Comments were due by March 20, 2017.

The Department withdrew the SNPRM on December 14, 2017:

In the notice of withdrawal of proposed rulemaking, 82 FR 58778 (Dec. 14, 2017), the Department stated that its existing requirements provide consumers information regarding fees for ancillary services and noted that the withdrawal was consistent with Executive Order (E.O.) 13771, ‘‘Reducing Regulation and Controlling Regulatory Costs,’’ [issued by Donald Trump] which has since been revoked.

But,

On July 9, 2021, the President [now Joe Biden] issued E.O. 14036, ‘‘Promoting Competition in the American Economy,’’ which launched a whole-of-government approach to strengthen competition.

… section 5, paragraph(m)(i)(F) of E.O. 14036 states that ‘‘[t]he Secretary of Transportation shall: . . . not later than 90 days after the date of this order, consider initiating a rulemaking to ensure that consumers have ancillary fee information, including ‘‘baggage fees,’’ ‘‘change fees,’’ and ‘‘cancellation fees,’’ at the time of ticket purchase.’’

Thus, the changes of presidential administrations first killed, then revived the proposed rules that occupied most of 20 Federal Register pages, seven years into the mission. DOT published the new NPRM on October 20, 2022, more than eight years into the mission. Comments were now due by December 19, 2022.

But, alas, parties on both sides of the issues sought more time. DOT granted those requests, extending the comment deadline to January 23, 2023 [87 FR 77765]. Another request for extension was denied on January 26, 2023, although, typically, “late-filed comments will be considered to the extent practicable.”

On March 3, 2023, DOT took the extraordinary step of announcing a virtual public hearing on certain issues in the rulemaking, the hearing to be held on March 16, 2023, with further comments due by March 23, 2023. [88 FR 13389]

Finally, on April 30, 2024, DOT published the final regulations in 89 FR 34620, consuming 57 Federal Register pages.

The rulemaking process had taken more than 10 years. In truth much more, because before the first publication in 2014, much legal, economic and other work had been put into creating the first set of proposed rules.

But, alas, it’s not over until it’s over. At the behest of the airlines, the regulation was “stayed” in 2024 by the 5^th Circuit Court of Appeals and on January 28, 2025, the court remanded the rules to DOT for further proceedings. The decision was based on what the court held was a fatal mistake that violated the Administrative Procedure Act, the law whose requirements ultimately lead to all the process surrounding federal rulemaking: the court found, DOT had “justified the Rule using cost-benefit data … that was not available during the notice-and-comment period.”

Whether these rules will ever be finalized is an open question, given the Trump administration’s hostility to consumer interests and regulation of business in general.

To repeat: the alternatives to this long and often painful process would allow members of government to make arbitrary and capricious decisions driven by conflicts of interest, personal bias, and other inappropriate considerations. THAT is why the government seems “inefficient.” It is inefficient by design so that other critical values are protected.

Could the process be made more efficient? Perhaps. But opening the government process to oversight and interference by people who know nothing about the governing law and little or nothing about the underlying issues and problems being addressed every day is not better government. It is tyranny.

For better or worse, for richer or poorer, we are married to this process. The courts get very upset, and rightly so, when an agency fails to follow the process correctly. That results in “remands for further proceedings,” which can mean more years of delay in reaching final rules.

The land mass is astonishingly diverse. Some bodies of water (Lake Superior) are larger than some states (South Carolina thus also Rhode Island, etc.). Together the Great Lakes occupy more than 94,000 square miles and collectively are larger than the states of New York, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, and New Hampshire combined. The State of Hawaii is about 2,400 miles from the US west coast and consists of 137 islands! We have mountains, deserts, forests, plains … everything.

Add to that the fact that the population of the United States numbers some 340 million people.

Legislating for this diverse aggregation of people, land, water and much else is complicated. It may be a general principle of the universe that a large, diverse country requires a large, complex government, especially if that government is to have a major role in promoting the “life, liberty and pursuit of happiness” of the population.

The lesson is ended. I may have bored you beyond repair. Sorry, not sorry. I will return to the headline topic, If You Want To Destroy A Country …., in another post shortly. Rest up. It’s going to get worse, much worse. Donald Trump means to have his revenge on the country he believes treated him badly. And the Republican Party is happy to go along to get along. The fate of our democracy, our economy, and our very lives is on the line. Trump’s goons, dressed in black, masked, with no visible identification, are snatching people off the streets and disappearing them. The United States is now the new Russia.