“When to allow discretion on the part of public servants is not an easy question to answer.”
most recent article for n my Merion West, I argued for stronger consistency in laws and enforcement. I argued that, since laws are written and enforced by human beings, with all the flaws and biases they naturally possess, the best way to minimize unfair treatment is to keep laws simple and to avoid variety in their enforcement. It would also help if there were fewer laws to enforce. The job of government should be to keep citizens secure and healthy, not to make some people’s lives more comfortable and convenient by restricting the freedom of others. At a time when Americans frequently hate each other’s guts, this is probably our best chance for coexisting within the same nation-state.
While I still would rather government generally behave this way, I do not believe discretion in government is always bad. Systems of protection and regulation can always break down, as can any system whose designers are human. Therefore, there will be times when the best option for a public servant is to exercise discretion and judgment, to carry out the spirit of his service rather than following the letter of the law.
This need not be an exercise of “common sense.” That is an overrated concept—and not a very useful one in a large, sprawling, decentralized, polarized country with an ever-growing and increasingly diverse population, a country where the definitions of “common sense,” “freedom,” “justice,” and other values are increasingly hard for people to agree on. It does mean, however, that if an official realizes that adhering strictly to normal procedures will cause far more damage than benefit, he should be willing to deviate from them.
How do we distinguish between situations where discretion is called for and those where we ought to demand consistent adherence to rules? To answer that question, we should ask what government is really for—or, rather, what we need it to do if our society is to function. According to the Declaration of Independence, “life, liberty, and the pursuit of happiness” are among the rights that government must secure for its people. According to John Locke, famously a major influence on Thomas Jefferson, property, rather than pursuing happiness, was an essential right. In any case, life—the security of human beings within the community—is the first and most important value for government to protect. No one can enjoy liberty, pursue happiness, or use property if he is at constant risk of death or injury.
Over time, our conception of the security government should provide has expanded. Along with the basics like the military, police, and courts, we have established programs of health insurance, unemployment insurance, affordable housing, pensions, and other benefits. We expect government to keep our air and water clean. We expect it to ensure that the products we buy are safe and that workers will not be maimed on the job or exploited by their employers. These are sometimes framed as issues of justice, but, in any case, they are matters of security. Freedom can be hard to enjoy if citizens who do not have much money are left to their own devices, or those who cannot protect themselves are at the mercy of rich and powerful people willing to mistreat them.
While there is value in government acting predictably and consistently (for example, sending Social Security checks on time, or making it easy for everyone who qualifies for public benefits to access them), there are rapidly evolving situations where those tasked with keeping their fellow citizens safe will need the authority to be flexible and innovate. The Coronavirus (COVID-19) pandemic is one such example: Faced with a situation of “unprecedented nature and scope,” government organizations like the Federal Emergency Management Agency (FEMA) have had to use new tools, cooperate with new partners and make difficult decisions about where and when to allocate limited resources. If, God forbid, the United States finds itself facing a similarly deadly and widespread challenge (like a terrorist attack with biological weapons), we should want the public servants tasked with keeping us safe to be able and allowed to think creatively, if that is what it takes for them to protect us.
The realm of politics between nations is a similar case. As Robert D. Kaplan wrote two decades ago in Warrior Politics (a prescient book in many ways), foreign policy takes place on a different moral plane than domestic affairs. Because there is no international government truly to regulate the conduct of countries (the United Nations was never meant to serve that function), questions of justice in the international realm are ultimately questions of power. That is very different from justice in the domestic realm. “Generals should use deceit,” Kaplan writes, “judges should not.”
Unlike our fellow citizens, we have a much lower chance of accurately predicting or understanding the actions and motivations of foreigners, especially real or potential foes. One of many reasons for the current acrimony in the United States is the inability for Americans to understand each other, or each other’s values. Red America and Blue America, it seems, might as well be separate countries.
One of the clearest foreign policy conundrums in which flexibility and imagination were called for was the Cuban Missile Crisis. Jonathan Church has written very thoroughly in Merion West about John F. Kennedy’s handling of a very tense situation that could have easily escalated into nuclear war. Some of his most experienced advisors favored airstrikes to destroy the Soviet missiles in Cuba, possibly followed by an invasion of the island to remove Fidel Castro. They included the Chairman of the Joint Chiefs, General Maxwell Taylor, and Dean Acheson, a former Secretary of State and one of the “Wise Men” credited with formulating America’s Cold War strategy of containment. It would have been very easy for an American president to accept their advice, to assume that only force would remove the Soviet missiles from America’s backyard.
Fortunately for the world, Kennedy chose the more flexible option of a naval blockade. This gave the superpowers the time they needed to back away from the brink. Furthermore, information revealed decades later showed an unexpected way in which resisting the advice to invade was a smart call for Kennedy. In addition to strategic missiles that could carry nuclear warheads to American cities, the Soviets had placed tactical nuclear weapons in Cuba, weapons that could have annihilated an American invasion force. That is another reason for a willingness to deviate from the norm in matters of security; there are always unknown factors at play.
There is a fictional example of the benefits of imagination and flexibility in The Wolf’s Call, a very interesting French movie from 2019, one similar in many ways to American films like The Hunt for Red October and Crimson Tide. France finds itself in a war with Russia, one that quickly approaches the point of a nuclear exchange. The French navy has strict procedures in place for the use of nuclear weapons—notably, the captain of a submarine armed with such weapons, after receiving his order to launch them, must interpret any subsequent order not to launch as an enemy lie.
However, when a group of sailors at headquarters realizes that what looks like a Russian attack is not what it seems, the sailors must warn a submarine captain before he can launch his missiles at Russia. They depend on the captain’s willingness to ignore very strict rules and use his judgment. The human factor is immensely important.
When to allow discretion on the part of public servants is not an easy question to answer. Part of the problem is that too few Americans have the opportunity to do useful, valuable national service. This need not take a military form; it would be wonderful if many more Americans, especially those in their 20s who are understandably worried and cynical about their life chances in the United States, had the chance to do civilian service. The Peace Corps, AmeriCorps, and the Foreign Service should all be massively expanded.
We could even try an idea from the early 1980s, proposed by one of the preeminent political observers of the last half century. Charles Peters, founder of the Washington Monthly, once proposed turning over hundreds of thousands of federal positions to people appointed by their members of Congress. They would serve for a few years in jobs they were capable of doing well; then, they would return to their communities with extensive knowledge of how their national government did and did not work. They could then share this knowledge with their friends and families and, in doing so, give them a much better idea of what government was really like than they could get from ideologically driven pundits.
What is more, constantly bringing outside knowledge into the federal workforce, knowledge that complements the experience and wisdom of civil servants without replacing them, would be a massive improvement over our current situation. It is not healthy for any democracy to have a vast divide between a citizenry cynical about their government (not without reason) and a civil service doing a necessary but often thankless task. More opportunities to serve could help narrow that gap.
The larger a country, the more difficult it is to govern fairly and effectively, and the more complex its laws and public institutions. A country as deeply divided along so many lines as the United States deserves a national government that strives to serve all its citizens with equal fairness. While that will often mean public officials adhering rigorously to rules to minimize the effects of biases (biases that every human being possesses), there will be situations in which flexibility is better than strictness. The more of us can serve our country, the better our chances of striking that difficult balance.
Michael D. Purzycki is a staff writer at Charged Affairs, the journal of Young Professionals in Foreign Policy.