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.
Decades ago, Democrats and Republicans both understood the need for a well-functioning, results-oriented government to provide public goods. On Nov. 15, 1933, Harry Hopkins, overseer of much of the New Deal, called governors and mayors to Washington to request that they submit proposals to get their residents working again. By Nov. 26, he had approved 920 projects just for Indiana and begun employing nearly 50,000 of its residents to repave streets, roads and airport runways. In the early 1940s, the 6.5 million-square-foot Pentagon was built in just 16 months.
In 1956, President Eisenhower’s signature infrastructure accomplishment, the Interstate Highway System, took shape with a short act of Congress. It called for 41,000 miles of highways and set basic minimum dimensions for lanes, clearances and medians. Though some planning had occurred on such a system in the previous decades, much of the practical implementation took place through state contracts awarded mere weeks after Eisenhower signed the act into law. Within a decade, 21,000 miles were built.
None of these programs was perfect, but Americans today can hardly imagine such public-sector effectiveness. Consider that in 2008 California voters approved a $33.6 billion bond proposal for a high-speed rail project. It’s now projected to cost over $100 billion and won’t be even partially operational until at least 2030. New York City’s East Side Access project to bring Long Island Rail Road service to Grand Central Terminal ran 14 years late, and costs skyrocketed threefold, to about $12 billion, all while the Metropolitan Transportation Authority misled the public.
What changed? In the Manhattan Institute report, Howard explains that, starting in the 1960s — an era wary of government authority — mandatory processes and detailed rules increasingly constrained officials’ discretion. Environmental reviews, originally a few dozen pages long that took a couple of months to prepare, now fill thousands of pages exploring technicalities and trivialities that, on average, take between four and seven years to complete. Time after time, local governments, NIMBY groups, environmental organizations and others with vested interests sue to block these projects, claiming that the review was incomplete or deficient. Howard notes that resolving these lawsuits takes, on average, another three to five years. Ever-growing rules and mandated procedures provide more grounds for these challenges — causing a vicious cycle.
At core, government proceduralization quixotically sought to remove the need for human judgment. Complying with laws and processes was supposed to produce the desired outcome, eliminating the risk that officials would abuse their authority. Six decades later, 150 million words of federal laws and regulations — many with conflicting goals — have instead paralyzed government and smothered common sense.
Ultimately, tradeoffs and the need to judge them remain. No law can decide whether a city would be better off building a bridge over expanding rail — that’s a political question that only one with local political authority should answer, contends Howard. Officials must have the power to make value judgments, guided by broad statutory principles for the public good. Under his proposed framework, leaders would be politically accountable for the popularity and wisdom of their decisions but not mired in interminable court battles.
Howard’s solution for America’s uneconomical and slow infrastructure starts with expanded decision-making authority. Agencies should have authority over categories of infrastructure, with their heads allowed to approve permits. Crucially, a national recodification commission would consolidate millions of pages of exacting regulations into a new goal-oriented code. In the meantime, Howard advises Congress to authorize the executive branch to approve permits, subject to short explanations from the executive of why the approvals are necessary for the public interest. And finally, courts would review officials’ actions only to assess whether they transgressed the boundaries of their authority. Failure to follow process would likewise be reviewed for abuse of discretion, not strict compliance, recognizing that procedures are merely means to produce benefits like transparency, public comment and accountability.
If Howard’s plan sounds infeasible, it comes at an ideal moment, when much of the seemingly impossible has suddenly come within reach. Some of the world’s most enduring legal structures have emerged from the kinds of recodification commissions he recommends. The Emperor Justinian’s recodification of Roman law, collectively known as the Corpus Juris Civilis, represented a monumental achievement for Western civilization, forming the bedrock of European legal systems. In the mid-1940s, the Uniform Law Commission and the American Law Institute drafted model state legislation to harmonize commercial transactions nationwide. The almost universally adopted Uniform Commercial Code proved one of the most successful, value-creating initiatives in American history.
The world’s wealthiest and most powerful nation need not accept public-sector paralysis. Howard’s plan would enable America to build boldly again, not sink further into bureaucratic quicksand.
John Ketcham is the director of cities at the Manhattan Institute and a contributing editor of City Journal.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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