Are US Regulators Regulating Or Dominating?

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It seems like we can’t go more than a week without US regulators getting their panties in a bunch over something Elon Musk’s companies are doing. The NTSB’s brassiere is in a blender over Autopilot and the FSD Beta, despite no real evidence that there’s a danger. Now, today, the FAA got a wedgie when Elon Musk blamed a launch scrub on them. They say that they must have a person on site to oversee SpaceX test launches, but couldn’t get anyone out there.

FAA adds: “Given SpaceX’s Starship SN8 launch in violation of its license, the FAA considers an FAA Safety Inspector’s presence onsite for licensed activity reasonable and necessary…”

— Christian Davenport (@wapodavenport) March 29, 2021

But, it’s still SpaceX’s fault, donchaknow. Regulators enjoy a saint-like status in the safety world, even when things they do make little or no sense. There are even congressional Democrats who think the FAA should be even more restrictive and harsh.

But not everyone is buying the FAA’s blame game here.

https://t.co/HBTkIdqod2 pic.twitter.com/8BK7v9Dm2V

— Cowboy Dan (@CowboyDanPaasch) March 29, 2021

The cartoon spreading around on Twitter echoes remarks Elon Musk has made. The FAA’s whole regulatory framework for launches is geared toward a very small number of launches per year, and isn’t particularly friendly to either private launches or rapid testing programs. In short, its way of doing things was built for another time before private space programs became a thing.

There’s a deeper problem, though. If modernizing the regulatory framework to fit today’s circumstances were the whole problem, it could have been solved by now. We really need to be asking what regulation is supposed to be and whether that’s what the NTSB and FAA are even doing.

Federal Authority To Regulate

Would it surprise you to learn that Congress can’t pass any law they want? Given that the Supreme Court occasionally strikes a law down, it should be pretty obvious that it can’t. There are limits to its power, and things it isn’t allowed to do, and I’m not just talking about the Bill of Rights (but that’s very important). The federal government (and each part of it) has limited powers, and can’t do anything that the Constitution doesn’t specifically authorize it to do.

What gives congress (and the regulatory agencies they created) the power to regulate things like automobiles and rockets is the Commerce Clause. It says: “The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”

What that power means has greatly expanded over time, though. It used to be that Congress could only make laws regulating actual interstate commerce. If an item wasn’t involved in interstate trade, it wasn’t subject to congressional regulation (but states, if their own constitutions allow, could potentially regulate them).

That power wasn’t enough for Franklin D. Roosevelt, though. His secretary of agriculture, Claude R. Wickard, had been told by Roosevelt and a progressive Congress to regulate all wheat production, with the aim to stabilize prices. Roscoe Filburn, a farmer in Ohio, was growing wheat to feed to animals on his own farm, and not to sell, and he argued that he couldn’t be fined for growing too much wheat because his wheat was not only not interstate commerce, but wasn’t commercial at all.

Under threat of a “court packing” plan, the court relented and gave Roosevelt what he wanted: nearly unlimited power to regulate just about anything. The argument was that Filburn’s wheat wasn’t commercial, but that it affected commercial wheat because he would have bought some if he didn’t grow it. Even if he bought the wheat in state, that indirectly affects the interstate wheat trade.

The Result: A Bloated & Dangerous Regulatory State

Since that court decision, the federal government’s regulatory activities have grown significantly, both in terms of scope and the sheer number of things that are regulated. Today, there are hundreds of different federal agencies with law enforcement authority. The Department of Education even has a SWAT team, and even the Peace Corp has a few people with badges and guns.

James Duane, a professor at the Regent University School of Law, says that the federal government has even lost track of the number of federal crimes there are today, and that for that reason it’s always best to not speak to any investigating officer from any agency. After all, if the feds don’t even know what all the crimes are, how would any of us know if we were self-incriminating?

Attorney Harvey Silverglate, author of Three Felonies A Day, says that modern criminal law is so expansive and vague that federal officials can basically prosecute anyone they want. They just need to look around for some law or other that was violated, and the average person unwittingly commits three or more federal felonies daily.

While FAA launch scrubs and calls for harsher autonomous driving regulations against Tesla are major inconveniences, we shouldn’t forget that this is a problem that sometimes costs good people their lives and property.

There are so many cops out trying to enforce different laws that they’ve even been known to accidentally arrest each other. Wrong address raids aren’t uncommon, and police agencies often aren’t held responsible for repairs or the deaths of innocent people or dogs on these raids.

The Ratifiers Of The Constitution Were Afraid of This

In the Declaration of Independence, one of the complaints against the imperial monarchy was that the king “…erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” What they faced at the hands of the king’s officers was small compared to what people sometimes face today, and they didn’t find even the limited levels of harassment they faced acceptable. That’s why strict limits were placed on federal power.

This might lead the reader to ask why they gave the federal government regulatory power, and the short answer was that they didn’t — at least not in the way we imagine regulatory power today. In the 18th century, “regulate” meant to keep things regular and working, not to have absolute power over every aspect of it. Their idea of “regular” was more in the Metamucil sense (having regular bowel movements), and not in the Walter Peck sense.

The ratifiers of the Constitution understood the Commerce Clause as a power for the federal government to promote interstate trade and keep states from shutting each other out with unfair mercantilistic policy. They didn’t intend for the federal government to shut everyone out of an area of commerce, or to make commerce so difficult that nobody could do it. They definitely didn’t intend for there to be swarms of officers harassing legitimate commercial interests like they do today.

I’m Not Arguing For Anarchy Here

I’m not saying that there should be no safety rules for things like autonomous vehicle testing or rocket launches, but a bloated regulatory state that hampers rather than promotes commerce isn’t how we do that. A Congress that can pass whatever law it wants, and then proceeds to pass numerous vague laws doesn’t enhance safety for anyone, and sometimes gets innocent people killed. We can achieve a reasonable level of safety without doing that. If we can’t, we’re doomed as a society.

There are alternatives to the bloated regulatory system that operates today. Instead of proactively controlling everything, we could instead empower federal agencies to impose rules on an entity only when there’s clear evidence that harm is actually being done. Alternatively, people being harmed by a commercial operation could seek relief in court, but that would require that the corporate liability shield be weakened in many cases. Or, we could respect the Tenth Amendment and allow states to regulate things like this.

Another alternative could be for the FAA and other agencies involved in space launches to have all powers outside of US territory stripped (and really, is there any justification for any part of the US government to have power outside of its own territory?). If commercial space testing of the type SpaceX engages in is so dangerous, it should be allowed to be conducted with little or no rules out in international waters. That would encourage future entities to move things offshore where the hypothetical danger to the public is far removed.

Either way, federal agencies should be regulating things in an 18th century sense, and not dominating and destroying them. The sooner we can get back to that, the better.

Featured image by SpaceX