Updates
Is America’s governing framework hindering our ability to make simple choices in daily life? American Law Institute President David F. Levi sits down with Philip Howard to discuss his new book. They’re joined by Judge Edith Jones and Nicholas Bagley for a lively conversation that explores Howard’s critique of complex legal structures and their impact on our sense of agency.
Francis Fukuyama talks with Philip Howard about Everyday Freedom, and how the law has weakened the authority of government in ways that make us less free.
"The Rule of Nobody" author Philip K. Howard describes the unexpected paralysis that has afflicted the American government.
“The land of the free has become a legal minefield, says Philip K. Howard -- especially for teachers and doctors, whose work has been paralyzed by fear of suits. What's the answer? A lawyer himself, Howard has four propositions for simplifying US law.”
Essays & Reports
Philip K. Howard, a graduate of Taft prep school, Yale and the University of Virginia School of Law, says he never wore “white bucks.” This 1950s campus fashion waned before he matriculated. Those buckskin shoes were popular among young blades destined to become “white-shoe lawyers” at prestigious “white-shoe law firms,” such as Covington & Burling, where Howard, 76, is senior counsel.
He also is a genteel inveigher against the coagulation of American society, which is saturated with law. In his new book “Saving Can-Do: How to Revive the Spirit of America,” he argues that law’s proper role is preventing transgressions by authorities, not micromanaging choices so minutely that red tape extinguishes individual responsibility and the social trust that individualism engenders.
This brief, accessible and powerfully persuasive book assesses the symptoms of our ailing polity and concludes that we are suffering from a widespread loss of agency, the lifeblood of any free society.
That loss begins and ends with a lack of trust. Some mid-20th-century activists and regulators worried that both government and the private sector in America were running needless risks that endangered individual rights and public health and safety. So they set about constraining the range of choices available to private and public decision makers, replacing individual discretion with legal frameworks that would make uncertain tradeoffs less necessary. “The post-1960s complex of rules, processes, and rights,” Mr. Howard argues, “has been designed with one overriding operational premise—to preempt human judgment.”
Americans increasingly feel like rats in a maze. Do this. Don’t say that. Did you comply with the rules? Is your paperwork in order? Can you fill out more and more of it for no discernible reason?
Governing systems were remade after the 1960s to replace human judgement (and authority) with a kind of legal software program. The origin story displays the best of motives--to preclude any more abuses such as racism and pollution. Because humans can make poor judgments, the theory went, it’s better to strain choices through a legal sieve of prescriptive rules, processes, and rights.
But it doesn’t work. Instead of enhancing freedom, law replaced freedom. Americans no longer feel free to do what they think is right or sensible. Doctors and nurses spend half the day filling out forms, teachers have lost control of the classroom, and employers no longer give job references or candid reviews.
Yes, the bureaucracy in Washington is a clogged-up tangle. That’s why two-thirds of Americans think it needs a major overhaul.
But slashing away at Washington’s many stupidities won’t fix much — like trying to prune a jungle. The way to drain the swamp is to pull the plug on its flawed operating philosophy — the post-1960s red tape compliance model. Americans are swimming in red tape. Is your paperwork in order?
In recent weeks, Elon Musk’s Department of Government Efficiency (DOGE) has moved to eliminate the U.S. Agency for International Development, while President Trump prepared an executive order to wind down the U.S. Department of Education. It’s the latest attempt to make government more efficient by eliminating things that it does. Merely shuttering departments, however, won’t get to the heart of the problem DOGE seeks to correct: The American public sector, at any level of government, can’t get things done in a time-effective and efficient manner.
A new Manhattan Institute report provides an antidote to this public malaise in the context of infrastructure. Its author, Philip K. Howard, offers a new governing vision that authorizes officials to weigh tradeoffs and make decisions for the public’s benefit.
Everyone knows that Washington is broken. Reformers on the right want to cut useless programs, and reformers on the left want to streamline rules and procedures. But neither reform approach will remove the red tape that suffocates common sense. There’s always another rule, another process needed to discuss a new issue.
Americans are harmed, not helped, by all this process.
The modern state is built on a flawed philosophy of law. Governing requires officials, not law, to make decisions.
In a report published by Manhattan Institute, Philip Howard argues that Washington needs to abandon the bureaucratic compliance model, and replace it with a simpler framework that empowers designated officials to make tradeoff judgments to modernize infrastructure and achieve public results.
Governing structures created after the 1960s are designed to fail because they presume legal rules and processes can validate correct choices. But law can't think. The proper role of law is to provide a framework that delineates the authority to make that decision, and provides public transparency and oversight.
Federal agencies need more discretion, not less. Many of the rules they follow are not statutory, and one useful function that DOGE could perform is to identify and eliminate the most outdated and inefficient of them. As Philip Howard, the author of many books on simplifying government and founder of the nonpartisan group Common Good, has pointed out over the years, bureaucrats need more freedom to use their own good judgment regarding the implementation of policy, rather than being forced to follow rules.
The litmus test for a good school is its culture—its caring, energy, mutual trust, and commitment to a common mission. Good cultures require teachers to feel ownership of the classroom and principals to enforce standards and values, while red tape and entitlements undermine the authority and human spirit that are essential. Fixing K–12 education requires stripping away bureaucratic and union controls and empowering educators to build good school cultures.
Most Americans know that Washington is overdue for a Department of Government Efficiency. But what should such a commission fix?
The civil service certainly needs an overhaul to establish accountability from top to bottom. The point, however, isn’t to inject a sense of terror in government employees but to instill trust that everyone is held to the same standards.
Appearances
As our nation faces a profound moment of political disruption, neither party is offering a vision to overhaul America’s broken governance. In Saving Can-Do, Philip Howard offers a bold and simple governing vision: Replace red tape with responsibility and let Americans hold each other accountable.
At this book event, Philip, AEI’s Philip Wallach, and The Washington Post’s George Will discuss how scrapping the red-tape state can enable America to reclaim the power of its unique can-do culture.
Former Speaker Newt Gingrich talks with Philip Howard about his new book, ‘Saving Can-Do.’ Philip discusses the pervasive issue of bureaucratic red tape that has stifled common sense and effective governance since the 1960s. He argues that the legal system has become overly complex, with 150 million words in federal law and regulation, compared to the 7,500 words of the U.S. Constitution. Philip advocates for a multi-year effort to replace these cumbersome bureaucracies with simpler codes that empower individuals to use their judgment.
We may be in an incredibly important moment for reimagining and reinventing what government can be. On this episode of Management Matters with James-Christian Blockwood, we talk to Philip Howard, Founder and Chair of Common Good, about some of the possibilities of this consequential moment for government.
Aaron Renn sits down with Philip Howard to discuss the crippling bureaucratic red tape stifling America’s ability to build and innovate. From the New Deal’s rapid achievements to today’s endless legal labyrinths, Howard proposes a bold solution: a framework rooted in human responsibility and accountability to restore America’s can-do spirit.
DOGE seems hellbent on taking an indiscriminate chainsaw to the government itself instead of pruning and cutting back in strategic ways. Philip Howard talks with Larry Rifkin about what needs to be done to enhance the performance of government and hold political leaders to account.
Newsletters
“Nothing that’s any good works by itself…You got to make the damn thing work.”
This practical wisdom of Thomas Edison applies to most meaningful life activities. Teachers, doctors, waiters, plumbers, ministers, inspectors, all confront situations where they have to decide what to do next. Even with miraculous technological tools, judgments are still needed to adapt to unforeseen circumstances, make tradeoffs, take risks, and make choices that are considered fair.
Americans broadly agree that government is broken. Our inability to modernize infrastructure, or provide quality education, or produce defense weaponry, presents an existential threat in a world threatened by totalitarian regimes that are not institutionally paralyzed.
I have a new book, out this week, Saving Can-Do: How to Revive the Spirit of America. One reason America is fraying, I argue, is because of a root flaw in post-1960s law: the idea that law should make or validate correct choices. Law is everywhere—in thick rulebooks, years-long procedures, self-interested people pounding the table for their alleged rights ….
America’s energy comes from individual ownership of choices and values—not tiptoeing through the day with a little lawyer on our shoulders. The proper role of law is to define the scope of free choice by setting outer boundaries—no crime, no pollution, and so forth—not by extruding daily choices through the eye of a legal needle. Law is supposed to protect freedom, not replace freedom.
American exceptionalism is rooted in individual initiative. Americans have a cultural belief in self-determination. America is the place where people can make the best of themselves.
Over the past few decades, America’s can-do culture has been corroded by a sense of futility. The failures are clearly visible in institutional ineptitude—say, the inability to modernize infrastructure or to fix poor schools. But the cultural rot is more pernicious. Americans no longer believe we can make a difference, or build a better future. We feel disempowered. Watch what you say. Just follow the rules. Instead of striding towards our goals, Americans increasingly feel like rats in a maze. Many turn to MAGA.
China’s autocratic society comes to life in Breakneck, the new book by Dan Wang. Nothing gets in the way of public works. Subways go through buildings. High-speed rail lines are built seemingly overnight. Industrial dominance in solar panels and electric cars is the result of deliberate policy.
Breakage is common. Top-down mandates can’t adapt to unforeseen circumstances and market realities. Cities of apartment buildings remain empty. One provincial czar had a kind of genius for idiotic mega-projects, including a giant ski resort in a place without snow.
What’s most breathtaking, to me, is the state’s intrusion into personal lives.
Maybe it’s me, but the news cycle seems both terrifying and tedious. We’re treated to a steady diet of crises followed by reactions which create new crises. It’s as if we’re in a straitjacket, bouncing off today’s emergency instead of making deliberate choices that might lead to a coherent future.
In a thoughtful New York Times column, Ben Rhodes explains how “short-term compulsions blind us to the forces remaking our lives.” He characterizes Trump as seeking “short-term ‘wins’ at the expense of the future”—for example, ignoring unsustainable national debt, climate change, and other existential perils. But Rhodes says Democrats too are trapped in short-termism—“spend[ing] more time defending what is being lost than imagining what will take its place.”