Limited Government in an Era of Unlimited Harm

Beginning this week, diplomats and political leaders from around the world have gathered for yet another round of high-level talks on the problem of global climate change. Expectations for the event could hardly be lower, even though the need for action has never been more obvious or urgent.

The most critical obstacle to progress on climate change is the inability of the United States to make any credible commitments to the rest of the world, given the upcoming presidential election and a chronically dysfunctional Congress. To overstate the point only slightly, America's heralded system of limited government is now entering an era of unlimited harm. The outlook is not pretty.

Harms may be unlimited because their sources are so numerous and dispersed as to resist traditional forms of regulation. Climate change is the obvious example, as domestic efforts to mitigate greenhouse gas emissions will matter naught without a mechanism for limiting the remainder of the globe's nearly seven billion emitters. Global economic risk is similarly diffuse: Interlinkages of finance and trade create opportunities for growth and efficiency, but also render any individual jurisdiction vulnerable to systemic risks arising from far outside regulatory purview.

Harms also may be unlimited in the sense that their potential impact is both catastrophic and incapable of precise estimation. For instance, climate scientists have identified a variety of scenarios under which global warming and ocean acidification spin wildly out of control, with harmful effects of unprecedented magnitude. Yet the mechanisms underlying these scenarios are not sufficiently well understood to assign probabilities to their likelihood. Similarly, before the events of September 11, 2001, the financial collapse of 2008, and the BP oil disaster of 2010, knowledgeable observers warned that such catastrophes were not only imaginable, but likely. Yet their warnings were not easily assimilated into our safety protocols and our risk models. How do we guard against an agent determined to be indeterminable? How do we price a risk to the very system that gives rise to price? How do we saddle an industry with safety obligations when it can constantly threaten to move elsewhere?

Our system of limited government faces grave challenges in this era of unlimited harm. The Framers of the U.S. Constitution famously worried about concentration of political power and, accordingly, devised a system of government rife with checks and balances on the assertion of such power. To the extent that social needs and harms would go unaddressed by this intentionally hobbled government, justification lay in the many benefits that victims are said to partake of simply by living under a system that favors private activity.

But this framework now faces a reckoning in the form of seemingly irresolvable systemic and catastrophic risks, many resulting from the accumulated side effects of private activity. Accordingly, as Benjamin Ewing and I argue in a recent article, our fear today should concentrate less on whether the American system of checks and balances can safely constrain collective political action than on whether we can develop a system of "prods and pleas" adequate to ensure that collective action does happen when necessary.

A prods and pleas approach would have two important reorienting effects. First, rather than a constitutional model in which ordinary principles and procedures for lawmaking yield to exception during crisis, government actors would be encouraged to proactively anticipate and engage the possibility of crisis. Inter-branch dialogue and planning would be promoted in recognition that catastrophic threats are ever-present, even though they only seem to happen sporadically and unpredictably. The power vacuum created by legislative incapacity during crisis -- often eagerly filled by executive branch assertion of emergency authority -- would be brought forward for more thoughtful, less panicked consideration.

Second, rather than a preference for incremental lawmaking, a system of prods and pleas would hold foundational change open for debate and possible adoption. A political culture grounded in checks and balances rarely revisits its foundation and structure, even when faced with potentially existential threats. Governmental actors attuned to the need for prods and pleas would counteract this tendency, seeking to draw attention to areas in which the foundation and structure of the status quo is itself the problem.

Just as the notion of checks and balances permeates our political culture, exerting influence far beyond its formal manifestation in institutions and doctrines, a belief in the need for prods and pleas would affect how government actors perform their roles. For instance, agencies would proceed with regulatory rulemakings that are admittedly less desirable than new legislation in order to prod Congress beyond its considerable, self-imposed inertia. Courts would not use technical procedural rules to surreptitiously foreclose controversial lawsuits, but instead would directly confront such suits in hopes of promoting broader democratic dialogue and engagement. And legislators would respond to moments of crisis by instituting procedures that force continued legislative engagement and oversight in calmer times.

All of these actions would be justified by the need simply to "quicken" the institutional hydraulics of limited government in an era of unlimited harm. Rightfully wary of political oppression in the Founding era, we nevertheless may have splintered and hobbled our government too well.

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