Information, ideas, news and commentaries on fixing America’s broken governmental and legal systems.


Press Release: Health Courts Gain New Momentum in Congress

Common Good released the below press release on February 18, 2015. Download it as a PDF here.

CONTACT: Miranda Barbot – Goodman Media International


President Obama’s Expressed Support for Them
Could Provide the Basis for Bipartisan Agreement

New York, NY—February 18, 2015—The creation of specialized health courts is gaining new momentum on Capitol Hill. Earlier this month three prominent Members of Congress introduced an alternative to the Affordable Care Act, which includes the creation of health courts. While the future of that plan is unknown, the inclusion of health courts is significant, because health courts have previously been endorsed by President Obama. Health courts could thus emerge as a point of bipartisan agreement.

The three Members of Congress are Sen. Orrin Hatch (R-UT), Chairman of the Senate Finance Committee; Rep. Fred Upton (R-MI), Chairman of the House Energy and Commerce Committee; and Sen. Richard Burr (R-NC), a member of the Senate Finance Committee. They have proposed the Patient Choice, Affordability, Responsibility, and Empowerment (CARE) Act to replace the current health law. Included in the nine-page summary of its provisions is the following language: “States could also elect to establish a state Administrative Health Care Tribunal, or ‘health court,’ presided over by a judge with health care expertise who can commission experts and make the same binding rulings that a state court can make.”

Health courts have previously been the subject of bipartisan agreement. Both President Obama and his 2012 Republican challenger Mitt Romney endorsed them. Mitt Romney advocated the creation of health courts in an op-ed in USA Today. President Obama had previously endorsed the creation of health courts in a letter to Congressional leaders released by The White House on March 2, 2010.

In addition, the National Commission on Fiscal Responsibility and Reform endorsed the creation of health courts, as have three other bipartisan commissions: the Committee for a Responsible Federal Budget (at the New America Foundation); the Debt Reduction Task Force of the Bipartisan Policy Center; and Esquire magazine’s Commission to Balance the Federal Budget.

The concept of health courts has been championed by Common Good—the nonpartisan government reform coalition—working in conjunction with experts at the Harvard School of Public Health. Under Common Good’s model, health courts would have judges dedicated full-time to resolving health care disputes. The judges would make written rulings to provide guidance on proper standards of care. These rulings would set precedents on which both patients and doctors could rely. To ensure consistency and fairness, each ruling could be appealed to a new Medical Appellate Court.

Health courts are aimed not at stopping lawsuits but at restoring reliability to medical justice. Special courts have long been used in American justice in areas of complexity where reliability requires judges, who can make consistent rulings from case to case, rather than juries, which have no authority to set predictable precedents. In the early republic, America had special admiralty courts. Today, there are special courts for tax disputes, family law, workers’ comp, vaccine liability and a wide range of other specialized areas.

The public sees the need for reliable health care justice—and for health courts in particular. A nationwide poll conducted in 2012 by Clarus Research Group revealed that 66 percent of voters support the idea of creating health courts to decide medical claims. The health court concept has also been endorsed by virtually every legitimate health care constituency, including medical societies, patient safety organizations and consumer groups like AARP.

In the past, the creation of health courts has been blocked in the U.S. Senate by aggressive opposition from a single special interest—the trial lawyers, who benefit handsomely from the current erratic system of medical justice and held great sway with the previous Senate leadership.

“The public would benefit enormously—saving tens of billions of dollars—from the reliable medical justice that health courts would provide,” said Philip K. Howard, Founder and Chair of Common Good. “With the new Senate leadership and President Obama’s endorsement of health courts, let’s hope that the public interest will now be put ahead of the trial lawyers.”

For more information or to talk with Common Good Chair Philip K. Howard, please contact Miranda Barbot at 212-576-2700 x264 or

Common Good ( is a nonpartisan government reform coalition dedicated to restoring common sense to America. The Founder and Chair of Common Good is Philip K. Howard, a lawyer and author of The Rule of Nobody (to be published in paperback next month by W.W. Norton) and The Death of Common Sense. The Rule of Nobody sets forth a vision for fundamental government overhaul.


New York Times: Infrastructure Roadblock

Common Good Chair Philip K. Howard penned the following letter in today's New York Times:

In "Ideology and Investment" (column, Oct. 27), Paul Krugman rightly argues for greater investment in public infrastructure, but he doesn’t mention that bureaucracy, not ideology, has put the brakes on every recent infrastructure initiative.

A White House report in February revealed that only 3.6 percent of the $800 billion federal stimulus plan went to rebuilding transportation infrastructure. That’s not because ideology got in the way but because federal, state and local bureaucracy did.

Infrastructure approvals can now take a decade or longer, extending beyond the term of any president. In greener countries like Germany, by contrast, approvals rarely extend beyond 20 months.

To rebuild America’s decrepit infrastructure, responsible officials must be authorized to say “go.” An official of the Environmental Protection Agency must be given the job of deciding when there’s been enough review. A “one-stop shop” must be created to coordinate all needed approvals.

Infrastructure is a good investment. Bureaucracy, not ideology, is what stops it.

Read the original here.

Ideas for a New Political Platform

by Philip K. Howard

Most Americans think government is broken, and despair of either party fixing it—indeed, 58 percent say we need a new political party. But what should a third party—or an independent grassroots movement—stand for?

Let’s start with the simple, essential goal of fixing and modernizing our broken government. A crescendo from all sides is calling for a complete overhaul—including books by the editors of The Economist (The Fourth Revolution), Peter Schuck (Why Government Fails So Often), Francis Fukuyama (Political Order and Political Decay), Eugene Steuerle (Dead Men Ruling) and my new book (The Rule of Nobody). But Washington will keep doing what it did yesterday until forced to change. That will require a movement that millions of Americans stand behind.

The platform, in my view, should focus on neglected goals, not merely dealing with sleazy aspects of democracy. Goals are tangible touchstones, providing clear targets as well as a basis for accountability. The continued failure of the political establishment to make progress on core goals is also irrefutable.

In trying to appeal to the vast unrepresented middle, the platform probably also needs to accept goals that each ideological wing instinctively resists. Liberals care about the environment. Conservatives care about fiscal responsibility. Moderates care about both. As an alternative to political stalemate, this draft platform calls for balanced initiatives to achieve both fiscal responsibility and a sustainable environmental footprint. The way to pay for this is to radically simplify government, updating priorities and eliminating notorious waste, inefficiency and special interest subsidies that extend back to the New Deal. As a bonus, a modern, simplified government can liberate everyone from bureaucratic paralysis—getting millions to work on rebuilding infrastructure, and relieving doctors, teachers, small businesses and everyone else from the migraine headache of mindless bureaucracy.

Here it is.

Platform for the Future.

America is drifting toward the rocks. Political parties are unlikely to risk making tough choices. A new group needs to build support for a functioning future framework. The movement should be built upon three core principles, which the political system continually fails to act on. We must demand these principles not as partisan goals, but as moral mandates:

  1. We must modernize government. Government is paralyzed by an accumulation of obsolete programs and mindless bureaucracy. This bureaucratic blob is smothering the American spirit. Initiative and spontaneity are increasingly illegal—bogging down teachers, entrepreneurs, citizens, even the President. The solution is not to get rid of government but to reset priorities and simplify decision-making. Human responsibility, not endless bureaucracy, should be the organizing structure of government.
  2. American government must not mortgage the future. The undisciplined accretion of subsidies and entitlements is immoral, making our children pay tomorrow for today’s benefits. The solution is not to terminate programs but to overhaul them to eliminate their many inefficiencies and inequities, and to make sure they are responsibly funded.
  3. America must be a responsible steward of the earth’s resources. America will have no moral authority to lead worldwide initiatives for clean air and water, and to preserve the vitality of oceans, unless it is disciplined in its use and oversight of finite natural resources. This requires new incentives that protect base levels of sustainability.

To accomplish these goals, American government needs to be rebuilt. There’s no avoiding it. The status quo is set in legal concrete. Fulfilling moral mandates of responsible government requires new codes—replacing the massive junk pile of well-meaning laws and programs with modern, practical structures that meet the needs of today’s society, not yesterday’s.

America’s political culture will not be helpful. It has become an engine of the status quo, going nowhere at great expense, as special interests succeed in preventing change. Breaking free of this broken political culture requires a new vision, fueled by moral imperative, of where America needs to go. What’s the right thing to do? That’s the question that should guide our choices, and define America’s future.

Join with us by signing on.

What do you think? I hope you will comment, here or at the Huffington Post.

When Humans Lose Control of Government

Writing for The Atlantic, Philip Howard argues that modern government lacks any sense of responsibility:

Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.

Our mistake, Howard says, is in trying to establish "clear law" that accounts for every possible circumstance in order to eliminate human error. While this sounds good in theory, in practice it prevents government officials from making sensible decisions. Take the recent VA hospital scandal for example:

Why did VA officials regularly falsify waiting times? Bureaucratic metrics required them to meet waiting time deadlines—or else they would forfeit a portion of their pay. Why didn’t they just do a better job? Compliance was basically impossible: Congress had mandated more VA services but only modestly expanded resources. Undoubtedly, better efficiency could have been squeezed out of available resources, but that would require liberating VA officials from civil-service straitjackets so they could manage other civil servants. Rigid bureaucracy, not the inexcusable dishonesty of VA officials, was the underlying cause of the VA scandal.

Howard goes on to recommend three areas of bureaucracy that are ripe for reform: Oversight of social services, the environmental review process, and the civil service system. Read his proposals here.

The Dawn of a New Political Narrative?

by Philip K. Howard

Newt Gingrich recently gave a speech at the Heritage Foundation in which he explained why government must be rebuilt, not fixed. The bureaucracy was invented about the same time as the manual typewriter, he explained, and still works in that clunky way. While an ATM machine can reliably distribute money to you and adjust your bank balance instantaneously, it takes the Pentagon 177 days to move a soldier’s health records to the Veterans’ Administration. “Nobody in the current system is allowed to think clearly about the scale of change that would be involved if you use modern technology.”

Government is stuck in paper-based organization. Federal employees’ pensions are processed by hand in a cave in Pennsylvania. Seriously. Permits for new businesses require trudging to a dozen or more different agencies. Matt Yglesias chronicled the mindless procedures required to rent out an apartment in DC. Because of all this clunky bureaucracy, the US now ranks 20th in the world in ease of starting a business.   

Efforts to bring modern technology into government almost always fail, however. One study suggested that only 4 % of federal IT projects were successful. Failure is virtually guaranteed for two reasons—first, the goal is almost always to automate the current system, not to rethink the underlying organization; and second, rigid procurement procedures do not permit the vendors to adapt to unforeseen circumstances. The disaster of the Obamacare roll-out—exacerbated by 55 separate vendors –was virtually preordained by a legislative mandate requiring the technology to sort out multiple separate healthcare entitlements for each person.    

The point here is not just efficient public administration. It is about historic overhaul. It’s hard to find a government program that isn’t broken—the only question is whether it’s broken 25% or 95%. Government is a huge pile of accumulated compromises and good intentions, implemented with all kinds of god-awful bureaucratic forms and requirements. Who reads all those forms? Should environmental review really take a decade? Should special ed really consume over 25% of the total K-12 budget? Do we need all those tax breaks for corporations? Or farm subsidies from the New Deal?

Newt’s speech is also notable for what it doesn’t say. The enemy in his speech is not government—everyone wants veterans to have health care. Indeed, as I argue in my new book (The Rule of Nobody), most government programs—including environmental review and special ed—are vital to our society. But the ineffectiveness of these programs is impossible to ignore.

Perhaps this is the dawn of a new political narrative. The current fault lines don’t get us anywhere, with Tea Party conservatives attacking the very idea of government, and liberals defending the virtuous aims of government without coming to grips with their pervasive semi-failures. 

The new enemy is ossification. Bureaucracy imbeds the status quo in legal concrete. Why doesn’t anything get fixed? Because it’s illegal to act sensibly. Balancing the budget is basically illegal because over half the budget is pre-committed to entitlements that don’t even come up for annual authorization. Rebuilding infrastructure on a timely basis is illegal because of interminable procedures and approvals. That’s why government must be rebuilt to make it work. This is what Jeb Bush is saying on stump—clean out the stables so government can focus on current priorities. Cleaning out decades of accumulated bureaucracy needn’t be a partisan argument. Do liberals really believe in a mindless trudge through endless bureaucracy?

The new aspiration is individual initiative. Liberate humans to roll up their sleeves and get things done. This includes liberating people within government, and rationalizing civil service so they can be held accountable. It shows how far government has degenerated when radical overhaul is required to restore the core assumption of democratic governance: individual responsibility and accountability. As Newt put it: “How do we rethink human activities to maximize the power of the individual and to profoundly replace the current structure?” 

Maybe there’s a crack in the door of our dark, acrid political culture.

What Broke Washington

This weekend the Washington Post published an op-ed by Philip K. Howard which presents a case for combating government dysfunction. The diagnosis:

I think we have it backward. Polarization is mainly a symptom, not the cause, of paralysis. Democracy has become powerless. Politicians who are impotent have no way to compete except by pointing fingers.

The main culprit, ironically, is law. Generations of lawmakers and regulators have written so much law, in such detail, that officials are barred from acting sensibly. Like sediment in the harbor, law has piled up until it is almost impossible—indeed, illegal—for officials to make choices needed for government to get where it needs to go.

And the solution?

Human responsibility should be restored as the operating philosophy for democracy. Only real people, not bureaucratic rules, can make adjustments to balance a budget, or be fair, or change priorities. Democracy cannot function unless identifiable people can make public choices and be accountable for the results.

Read the full piece here.

A Bridge Too Far: The President Visits the Tappan Zee Bridge

by James R. Maxeiner

At 16,014 feet long, the Tappan Zee Bridge that crosses the Hudson River at Tarrytown is the longest bridge in New York and among the fifty longest bridges in the United States. Although only sixty years old, the bridge has long been in need of replacement. President Obama’s May 14 visit to the Bridge gives us hope for infrastructure approval reform in America even as it reminds us of how far the United States has to go and of how long we must bear the costs of our failures to coordinate approvals.

President Obama touted that through his personal intervention, approval of the replacement bridge had been fast-tracked and that the time required for approval had been cut to one-and-one-half years from the “normal” three to five years (or, he might have added, from the not uncommon decade or longer required for some infrastructure projects, such as the Bayonne Bridge). Fast-tracking does not mean slipshod review; it does mean coordinating and reducing required approvals.

The President announced plans to apply the same strategy to eleven other major infrastructure projects. But that’s not good enough. We need coordinated approval to be the norm for all projects. Three to five years should be the exception, not the rule. Moreover, we need a strategy that coordinates infrastructure projects, period. Why?

NPR this week reported why the Tappan Zee Bridge is so long—crossing the Hudson at one of the river’s widest points. Why not at a narrower point? Because where the river narrows, the bridge—and its lucrative tolls—would have fallen within the jurisdiction of the Port Authority of New York & New Jersey. Governor Thomas Dewey wanted those tolls instead to raise revenue for highway construction. So the bridge was built, at great expense, at one of the widest points on the Hudson. And this political decision from sixty years ago predetermined where the new bridge is today being built: where the old bridge is, at the river’s widest point.

Governor Dewey’s political decision reminds us that while laws can anticipate the future, they cannot do so perfectly, and need to be updated periodically. In 1921 New York,  New Jersey, and federal laws created the Port Authority to facilitate cooperation between the two states, but they did not fully anticipate the growth of the New York City area over the next thirty years. In 1956, regional highway infrastructure cooperation became national policy when Congress created the Interstate Highway System. But the "bridge too far" had been finished the year before, too late to be moved.

President Obama’a visit reminds us that we should not wait another sixty years for a general coordination of infrastructure approvals.

Press Release: President Obama’s Plan To Streamline Infrastructure Reviews

NEW YORK, May 15, 2014 /PRNewswire/ -- Common Good, the nonpartisan government reform coalition that has been championing reform of the nation's infrastructure review process, today praised President Obama's newly announced effort to streamline the infrastructure permitting process but said it will "carefully watch the details of the White House plan" as it develops.

Philip K. Howard, Founder and Chair of Common Good, said that the organization supports major elements of the President's plan, such as synchronizing agency reviews, shortening decision making times, allowing the public to track the status of permitting reviews, and creating an interagency infrastructure permitting authority to find ways to streamline the process.

"The President's plan embraces many ideas that Common Good has been actively promoting," Howard said. "It's a big step forward. But the devil, as always, is in the details. We want to make sure special interests don't hijack the plan to protect a failed status quo. We need real reform, not window-dressing."

A nationwide survey of U.S. voters conducted by the nonpartisan Clarus Research Group and commissioned by Common Good last November found that a majority of voters (61%) believe it would be possible to cut the amount of time it takes to do environmental reviews of infrastructure projects without harming the environment. A majority of every partisan group – Democrats (52%), Republicans (72%), and independents (59%) – agreed.

"Modern infrastructure is essential to America's way of life and a growing economy, and so are strong environmental protections. But when government can't even rebuild an unsafe bridge without years of unnecessary delay, something is terribly wrong," said Howard. "The system must be changed."

Good Government vs Less Government

Howard's Daily by Philip K. Howard

“The problem with Howard’s ideas is that they rest on the naive fiction that there can be such a thing as ‘good government.’ In fact, the best we can hope for is less government.” So ends the critical review by Logan Albright of my new book The Rule of Nobody for the Von Mises Institute.     

Just get rid of government wherever possible. That’s the simple narrative that appeals to many conservatives. Government is indeed filled with obsolete programs, such as New Deal farm subsidies. It also smothers freedom with many overbearing regulations. Shutting down children’s lemonade stands for want of a vendor’s license, for example, is absurd. Moreover, it is hard to find any government program that isn’t broken in large part. The Social Security disability program, for example, is rife with abuse. Social Security itself, perhaps the most efficient social program, is on the road to insolvency. 

But the orthodoxy of smaller government doesn’t deal with the failures of what remains. Moreover, government has gotten ever bigger, even under Republican presidents, as the country confronted new challenges such as terrorism. Most citizens probably would vote for government oversight for clean restaurants, caring nursing homes, and airworthy planes.  

Instead of wholesale attacks on government, philosopher Roger Scruton argues in a thoughtful essay in the new issue of First Things ("The Good of Government"), conservatives should be more discriminating about where government is needed to enhance the culture of a free society. 

The important question—addressed by neither conservatives nor liberals—is why government works so badly. Environmental review shouldn’t take a decade. Starting a small business shouldn’t require permits from a dozen different agencies. Principals ought to be able to terminate ineffective teachers.   

Government is organized to fail, I argue in my new book, because nobody in modern government is free to make sensible choices. No one can say, "Oh there’s no need for kids to have a vendor’s license for a lemonade stand." The president lacks the authority to expedite rebuilding projects. The teacher can’t dismiss a disruptive student without risking a drawn-out legal proceeding. Everyone is shackled to detailed rulebooks. Government is run not by accountable officials, but by humans who are told to act like legal robots. Law has become central planning. It is hardly surprising that every encounter with government is an exercise in frustration when nobody—not the regulator, not the citizen—is free to adapt to the circumstances.  

A certain conservative orthodoxy, ironically, joins with liberals in demanding a central planning vision for public choices. Better legal shackles than a public official running amok. What if the official is a tyrant? That’s why the Nobel laureate Friedrich Hayek concluded in his early writings that "government in all its actions…[should be] bound by rules announced and fixed beforehand."

There are many flaws in this assumption that detailed law enhances freedom. The current system of several billion words of law does not protect against a regulatory tyrant. No one, not even large companies with hundreds of lawyers, can conceivably comply with volumes of detailed rules. When noncompliance is unavoidable, officials have carte blanche to be tyrants: "Sorry, you don’t comply with Rule 256 (v)(3) (iii)."

Moreover, our options for a government operating philosophy are not limited to 1) mindless rules or 2) anything goes. The Rule of Law can constrain officials with goals and general principles, while still providing flexibility to act sensibly. Our most important principles of law—say the "reasonable person" standard—always require application by reference to social norms. But, to some conservatives, the idea of an official having discretion—even limited discretion—is like holding a cross in front of Dracula. 

Here’s how Mr. Albright criticized my vision of law that leaves room for human judgment: 

"Howard suggests that an exhaustive list of food standards for nursing home could be simplified to a simple requirement that they provide ‘nutritious meals.’ This sounds like common sense, but what exactly is a nutritious meal? If the inspector happens to be a vegetarian, what is to stop them for forbidding red meat, when the residents and their families were perfectly happy to have it? Discretion allows the biases of individuals to creep into enforcement, and to pretend that anyone is capable of acting wholly without bias is to deny human nature."

Is requiring "nutritious meals" really an invitation to abuse? There are accepted guidelines for nutritious meals from professional medical societies. No inspector ever has unfettered discretion to demand whatever he wants. If an inspector demanded vegan meals for everyone, or caviar at dinner, the nursing home operator could just say no. To enforce his order the inspector would have to go to court. Who do you think would win?  

General principles of law are not invitations to tyranny but the opposite. "Standards that capture lay intuitions about right behavior," Judge Richard Posner notes, "may produce greater legal certainty than a network of precise…rules."

Principles are enforced according to current social norms. True, they leave room for argument. But so, usually, do precise rules. "Clear law" (with a few exceptions like speed limits and age eligibility) is generally a myth. Ambiguity is inherent in most language. With general principles, the argument focuses on right and wrong: Is this food nutritious? With precise rules, the argument focuses on parsing a legal language. The argument is no longer tethered to lay intuitions of what’s right.   

I know conservatives would prefer to have no regulation. But will de-regulated nursing homes pass muster in a democracy? Over 50% of nursing home residents suffer from dementia. Can we really rely on market forces? Mr. Albright may not trust government regulators, but I suspect most Americans wouldn’t trust nursing home operators either.    

How does it work out when rules permit human judgment? Airplanes are certified to be "airworthy" by FAA experts without detailed guidelines on how many rivets, etc. Would you prefer that market forces decide which planes can fly safely? Or, in the alternative, would you prefer a regime of thousands of rules where plane manufacturers can go to court, over the objections of FAA experts, and get a judge to decide that the plane complies with rules? Personally, I’d like the FAA experts to make the final decision. 

Nursing homes in America, notwithstanding a thousand rules, are generally awful. How do we make them better? Mr. Albright says deregulate. I suggest radically simplified standards for oversight. In the late 1980s Australia abandoned its detailed nursing home rule book and replaced it with 31 general principles that focused on goals, such as requiring "a homelike setting," and respecting the "dignity of the residents." Within a year, nursing homes were materially better, and they’ve continued to improve over time. The reason? People are empowered to do what they think is right, not act like mindless robots.

Mr. Albright places his faith mainly in markets:

"The market is a sorting mechanism that keeps these people in line in order to preserve their profits, but government is not subject to market pressures. As such, the problem is more fundamental than too much or too little rigidity. Government is fundamentally corrupt, as it rests entirely on the premise of coercive power. Rather than tinkering with the levels of discretionary authority officials possess, we would do better to limit their power."

I too believe in the effectiveness of markets. But markets are not always good at making moral judgments, or protecting against abuse. That’s why law is essential to freedom.

Just as unfettered government authority is an evil, so too an unfettered market can lead to evil. The trick is to have the right tension between government and markets, and to have accountability over government. Democracy too should be a kind of market, with people voting their preferences. Instead democracy is out of anyone’s control. It doesn’t matter much whom we elect, because the law tells everyone what to do. By clinging to the orthodoxy of detailed law, we have unwittingly removed accountability from democracy while trying to guarantee against its abuse. 

At the end of his life, Hayek recanted his demand for mechanical government, saying that he had reconsidered "the supposed greater certainty [when]…all rules of law have been laid down in written and codified form." Law works better, he concluded, when decisions are made "by generally held views of what is just."

Human initiative, not rules, make the world go round. This is what conservatives believe, and they are right. Then why don’t they see that the same truism applies to government? Government will never get fixed until humans within it are allowed the flexibility that goes along with taking responsibility. Only then can democracy hold them accountable for the many failings of modern government.

Trust the Government?

Howard's Daily by Philip K. Howard

Last week George Will wrote a powerful column on how "The Heavy Hand of the IRS Seizes Innocent Americans’ Assets." The episode involved an immigrant who owned a grocery store in Fraser, Michigan. Because about a third of its sales are in cash, the owner regularly deposited cash in a bank across the street. There is an anti-money laundering law, aimed at drug dealers, which requires banks to report cash deposits of more than $10,000, and also prohibits people from structuring deposits to avoid the law. The grocery store had been audited by the IRS several times in recent years, without any finding of suspicious activity. Last year, under broad power to catch criminals, the IRS without notice seized the grocery store’s bank account. 

The story, most would agree, is an outrage. What went wrong here? George Will attacks both the law—the "guilty-until-proven-innocent" forfeiture power—and the IRS agents who decided that a grocery store making regular cash deposits was a criminal enterprise. However much Americans distrust government, Will concludes, that "distrust of government is insufficient."

Let’s unpack the story, and see if there is a moral for how government should work. I’m not an expert on money laundering, but can readily imagine why in certain circumstances the government should be able to freeze assets. Otherwise, with the press of a button, criminal resources can be transferred out of the country.   

But that’s obviously not the situation here: the supposed vehicle for crime, a local grocery store, is going nowhere. It is perpetually receiving cash for cans of Coke and quarts of milk. The IRS had no need to seize deposits in order to avoid the owner fleeing the jurisdiction with ill-gotten gains. 

The main thing that went wrong here is a failure of human judgment. The IRS agents abused their power. What’s the solution? In any sensibly-organized democratic structure, after an investigation, the responsible IRS officials should be sanctioned or fired. 

But civil servants can’t be held accountable. The so-called "merit system" has evolved to become an "anti-merit system." Public employees can’t be fired, or even sanctioned, without years of legal proceedings. I don’t think I’ve ever heard of a civil servant losing his job because he abused his power over citizens. It may be that the forfeiture law needs to include a stronger principle that it should be used only when there is reason to believe that targets and their assets will flee the jurisdiction. But that principle still requires human judgment. No set of words in law can ever remove the need for humans to act appropriately.  

Personal accountability should be the operating mechanism for any organization. Without it, culture soon degrades. Government today is a tangled jungle of incoherent law and regulation because we look to words, rather than personal responsibility, as the way of safeguarding against error. My conclusion is this: the main flaw in modern government is not that officials have too much power, but that they can’t be accountable when they abuse it.

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