Before the Law stands a doorkeeper on guard. To this doorkeeper there comes a man from the country who begs for admittance to the Law. But the doorkeeper says that he cannot admit the man at the moment. The man, on reflection, asks if he will be allowed, then, to enter later. ‘It is possible,’ answers the doorkeeper, ‘but not at this moment.’ Since the door leading into the Law stands open as usual and the doorkeeper steps to one side, the man bends down to peer through the entrance. When the doorkeeper sees that, he laughs and says: ‘If you are so strongly tempted, try to get in without my permission. But note that I am powerful. And I am only the lowest doorkeeper. From hall to hall keepers stand at every door, one more powerful than the other. Even the third of these has an aspect that even I cannot bear to look at.’ — Franz Kafka, The Trial
I freely admit that I am a bad driver. I have that exact combination of distractibility and lack of spatial awareness that makes someone a complete disaster on the road. I try to drive carefully, but Texas highways are a demolition derby, and it’s hard not to get carried away. And so, given how many times I likely should have been pulled over, and wasn’t, I probably had no real reason to feel affronted that day when a cop flagged me down a little outside San Antonio. I still managed to muster a sense of righteous indignation, because on this particular occasion, I was barely going seven miles above the speed limit.
The cop pointed out that I was speeding, and I gave him a faintly incredulous look. People regularly did 90mph on this stretch of highway, and we both knew it. The cop wrote me a ticket with no dollar amount. “How much is it, though?” I asked. I don’t know, the cop told me, you have to call the phone number listed on the back. I dragged myself home, posted the ticket on my fridge, and forgot about it until a week before the payment was due.
That I would eat the cost of the ticket, rather than fighting it out in court, was a foregone conclusion. I told myself that this was because of my overweening pride and haughtiness, refusing to prostrate myself before The Man, and not because I’m lazy, impatient, and intermittently terrified of strangers. Nonetheless, I was still pretty shocked when I called the number as instructed, and a voice on the phone told me that I owed the city of Von Ormy a whopping $430 dollars. “I was seven miles above the speed limit!” I exclaimed. Yes, and that was $230, the voice told me patiently, plus an extra $200 for an expired registration. Still on the phone, I angrily googled Von Ormy and immediately found a number of news articles dubbing it a “libertarian experiment,” where residents aren’t charged taxes and which, consequently, seems to be in a constant state of economic freefall. That certainly explained why they have traffic cops stationed right on the part of the highway where the speed limit changes from 75 to 70, looking for passing cars to shake down. I asked if I could pay the ticket online, and was told no—the only way to pay was by money order.
One day before the deadline, I called the court in Von Ormy to confirm that they received the money order I’d mailed them. “Where did you mail it to?” the voice on the phone asked me. “The courthouse,” I said. The voice told me, pityingly, that I shouldn’t have mailed it to the courthouse. I was supposed to mail it to a mysterious P.O. box, obviously. At this point, it fully dawned on me that a money order is not like a check, where the funds won’t be drawn if they don’t reach their intended recipient—I had basically just sent a $430 wad of cash off into some kind of postal abyss. And now the deadline for paying by mail had passed, the voice on the phone told me, so I would have to come settle my ticket in person.
I said something incoherent about how libertarianism was literally highway robbery, and hung up.
In the end, I got my ticket paid, leapfrogging an entire roomful of fellow-miscreants at the courthouse who were all anxiously waiting to try to bargain down their tickets with the prosecutor. My ability to circumvent that specific, time-consuming part of the process was purely a privilege of wealth: I had enough money in my bank account to cover the sticker price of the ticket, notwithstanding my earlier fuck-up with the money order, and so I bought my way out of the room as quickly as possible.
This anecdote, apart from being a classic showpiece of my unremitting administrative incompetence, is, I think, a pretty good example of how we mortals usually interface with bureaucracies, both the government and private bureaucracies which exercise control over important parts of our lives. Bureaucratic processes have lots of rules; some of those rules are unwritten; some are written down, but not consistently followed; some are written down, but not in a place you have access to; random officials determine which rules will be invoked at which times; and, usually, there are a series of escape-valves where, if you have enough money, you can just bribe yourself out of the remaining hassle.
Bureaucracy, of course, looks very different when viewed from the perspective of those who govern (or those who sympathize with those who govern), as opposed to those who are governed. For political scientists, bureaucracy is a normal and unavoidable feature of large states. No executive can single-handedly administrate a large polity, and so the development of systematized decision-making procedures that can be delegated downwards is the inevitable outcome. (That bureaucratic systems would develop within private enterprises seems even less surprising, since there’s no pretense of drawing authority from any kind of public mandate.) And in many polities present and historical—from imperial China to the Carolingian Empire to 19th-century Britain—bureaucracies have been imagined as a meritocratic alternative to pure nepotism, the idea being that individuals without significant wealth or family power could enter a bureaucratic system and advance within it, based solely on talent.
In the United States, where our political consciousness is mostly limited to elections, and few of us have any cognizance of how bureaucrats are chosen and elevated, this rosy view of bureaucracy isn’t nearly as widely-held, but some recent media has romanticized bureaucrats and civil servants. Think of The West Wing, dramatizing the behind-the-scenes labors of White House administrators, or Parks and Recreation, where main character Leslie Knope is presented as the quintessential virtuous bureaucrat: eccentrically delighted by regulations and procedures, tirelessly hard-working, and ambitious in the service of the public good. Bureaucrats are, in these shows, imagined to be the epitome of responsible, effective governance, separate from and more high-minded than the rat-race of electoral politics.
This, however, is a vision of bureaucracy from the perspective of bureaucrats themselves. The vision of bureaucracy from the perspective of those who are subjects of bureaucracy is simply: paperwork. There is a thing I need, and I cannot get it unless I fill out a million incomprehensible forms. There is something I have done wrong, in the eyes of the state, and in order to correct it, I must perform a series of bizarre tasks, like a rat in an experiment. Miniscule irregularities in my compliance with these administrative rituals confer immense power on the bureaucrat tasked with evaluating me: such an error gives that bureaucrat untrammeled license to reject my request if they so choose. If the fictional face of the bureaucrat is Leslie Knope, the fictional face of the bureaucratic subject is Josef K., the protagonist of Kafka’s The Trial, who finds himself trapped between a nebulous court and a shadowy Committee of Affairs as he struggles to navigate something he knows only as “the process.”
My most nightmarish encounters with bureaucratic systems, unsurprisingly, have occurred in connection with my work as an immigration lawyer. When people think about why our immigration system is bad, they often think about armed patrolmen at the border, prison guards at detention centers, ICE agents conducting workplace raids, etc. But our immigration system is also, at its core, an extremely large and intricate bureaucracy, and many of the bad decisions that affect people’s lives within this system are not made by, say, racist immigration cops going rogue in the field, but by immigration bureaucrats calmly reviewing paperwork in an office. It’s hard to convey the extent to which the rules of this system are deliberately set up to ensure that most immigrants are unable to follow the law, no matter how hard they try. This, in turn, then gives the government handy anecdotes and statistics to trot out in order to suggest that immigrants, much like Josef K., are not Complying With The Process.
Let me give you an example of a problem that I encounter frequently. I work primarily with immigrant mothers and children who are imprisoned at a family detention center in Dilley, Texas. One of the ways that moms and kids end up in that detention center is because they were picked up by ICE for having an order of deportation that was entered against them automatically when they failed to show up for their scheduled hearing in immigration court.
Now, you might well suspect that people who miss their immigration court hearings are skipping them on purpose, knowing that our court system is incredibly hostile, and fearing that they’ll lose their case. I certainly wouldn’t blame any immigrant for doing this, since it’s exactly what I would do in their shoes, without hesitation. However, this is not why the vast majority of the families I’ve worked with have missed their hearings. In fact, the #1 reason that people miss their hearings is because they never knew they had a hearing. How do I know that these families are telling the truth? Because most of them were arrested at their required check-ins with ICE, to which they continued to faithfully report even after their deportation orders had been entered. Why the hell would you keep attending your scheduled meetings with immigration officials if your intention was to go into hiding?
In fact, the story I hear from these families detained at their check-ins is almost always the same: “I did everything I was supposed to do. I checked my mail every day. I went to all my meetings with immigration. I answered all of immigration’s phone calls. I always complied with the law. I don’t understand why my children and I were arrested.” When I would dig further into their history, I would usually find out that the family, at some point, moved to a different address than the one they registered with immigration when they arrived in the United States. They had, of course, dutifully informed ICE of their new address at their check-in, and an ICE officer had written it down on an official-looking form right there in front of them, and the family had believed, quite reasonably, that they had successfully updated their address with “the government.” Little did they know, of course, that “immigration” (a.k.a. ICE) is housed under a completely different department than the immigration court system, which is responsible for mailing their hearing notices. To change their address with the court, there is a completely different piece of paper they have to fill out and mail to several specific locations within five days of relocating. ICE, with whom these families meet every month, doesn’t give a shit whether the families get their hearing notice at the correct address, so they don’t go out of their way to let the families know that there are additional steps they need to take. And so then, of course, the family shows up at their scheduled check-in one day, never having known that they even had a court hearing scheduled, only for immigration to gleefully inform the family that they’ve lost their case and take them into custody. (Other times, the family’s registered address is entirely up-to-date, and the government just fucks up sending the notice in the mail—this happens with some frequency, too.)
So let’s suppose you’ve missed your hearing in immigration court, and you’ve automatically been issued an order of deportation—what can you do next? Many immigrants in this situation, I assume, simply get carted off and deported without fanfare, because most detention centers are remote and it’s hard to get legal services. If you happen to be detained at a center where there are lawyers on hand to help you, you could perhaps get assistance in filing a special motion to reopen your case with the immigration court. Courts are generally pretty stingy about granting these, but if you were prevented from attending your hearing for reasons that a particular judge views as sufficiently credible and legally compelling, they might decide to give you another chance.
Now, you might think: okay, sure, a very poor, recently-arrived, non-English-speaking family can’t reasonably be expected to navigate the immigration bureaucracy on their own. But if a trained immigration lawyer were right there, guiding them through each step of the process, surely everything would go fine! Well, not so much. We’ll leave aside the substance of the lawyer’s arguments, and how absurd the judge’s ultimate decision can be: I’ve had motions to reopen denied for families who were literally kidnapped by drug cartels on the date of their scheduled hearing. Let’s just focus on the bureaucratic considerations: can the lawyer even manage to get the damn motion filed in the right immigration court? When an immigrant you’re trying to help has been shipped to a detention center for processing prior to deportation, there’s a very good chance that the court in which their proceedings took place is located clear on the other side of the country, and also that you’re looking at a same-day window of time to get the documents filed with that specific court before your client is put on a plane. Can you file documents electronically with an immigration court, in This Year Of Our Lord 2020? OBVIOUSLY FUCKING NOT. You need to file in hard copy, which means either mailing the thing overnight—very expensive, and possibly not fast enough—or finding an actual human in the city where the court is located, who can drop everything they’re doing and run to deliver documents for you.
Okay, let’s suppose you manage to find someone who’s available to file the motion. You may still be screwed. Everything depends on the government clerk at the court filing window. The clerk can choose to accept your filing—thus temporarily pausing the immigrant’s deportation, and possibly giving you a chance to reverse their deportation order (which again, I can’t stress enough, was probably entered against them for the most bullshit reasons imaginable)—or reject your filing, thus ensuring their immediate removal. A lot is riding on this decision! Surely, a clerk wouldn’t reject a filing for some reason that makes no goddamn sense! Reader: they would. I’ve seen clerks reject emergency filings because they didn’t contain “wet” ink signatures, when, again, the person was detained thousands of miles from the court and couldn’t have transmitted an original signature to the court in time with anything other than actual wizardry. I’ve seen clerks reject filings because they weren’t hole-punched at the top, when a hole-punch was sitting right at the clerk’s elbow at the moment of the rejection. I’ve endured agonizing phone calls with clerks who rejected filings for reasons they were entirely unable to explain, or who pretended to accept filings at the window and then quietly rejected them later without telling anyone.
The consequences for these administrative decisions can be huge. We are talking about people getting deported because the government never told them they had a hearing, imprisoned them so far from the courthouse that they couldn’t send their documents in time, and rejected the documents that strangers rushed to file on their behalf. Lots of individual actors within the system had to make lots of little decisions, based on mysterious rules, for this insane result to be possible.
What kind of a person becomes a bureaucrat? Honestly, part of the reason that I dislike bureaucrats so intensely, I think, is because I have certain personality traits in common with them. I prefer rote, repetitive, predictable work-tasks to complicated, highly context-dependent work-tasks. I don’t really like having direct authority over others, nor do I enjoy subjecting myself to the personal whims of an individual boss, so making decisions independently but based off a tree, so to speak, is comfortable for me. I’d like to have a job that I didn’t have to think about very hard, where I felt like my responsibilities were pretty clear-cut, and where my mind would be freed up for my own imaginative and creative pursuits. In the right setting, I would probably be a reasonably contented pencil-pusher.
I also have some of the characteristic flaws of bureaucrats. When someone asks me a question I don’t know how to answer, or wants something from me that I don’t know how to give them, I have a tendency to bluster, shut down, or try whatever else I can to prod the problem away from me. When I was in high school, I worked as a cashier at a toy store, and I dimly recall that there were many times where I couldn’t figure out how to find some item, and I sort of just… played dumb until the customer gave up. Those were low stakes, of course: other than a modicum of lost revenue for my employers, and I don’t know, the tears of disappointed children, there were no negative consequences. There are some bureaucracies that are like this, too, where the work is low-stakes, and incompetence and lack of problem-solving initiative has limited consequences (or it seems that way, because the consequences are attenuated or invisible). Then there are other kinds of bureaucracies, where the bureaucrats who work within them are constantly exposed to the suffering, despair, pain, and anger of the people who are subject to these bureaucracies. I think I share some of the flaws of these bureaucrats, too. I know how it is to feel like the system you’re working in is monstrously large, and your hands are tied; to feel irrationally angry at suffering people, who presume to think you have the power to do something for them when you simply don’t; how it feels when a person becomes a problem for you, and you want the problem to go away, and you experience a certain psychological relief when that happens, regardless of whether it went away because you solved it, or because you failed to solve it, so long as you don’t have to hear about it again. I know all these feelings intimately, and I think they’re evidence that these kinds of rule-governed systems warp the minds and empathetic faculties of the people who are forced into contact with them.
Of course, it’s hard to get around the need to have something like a bureaucracy in many areas of life. After all, if our goal is to have something approaching a world where resources are justly apportioned, that entails some sort of system for tracking how many resources are going where, and what uses they’ll be put to. Misuse of resources, whether from human error or calculated graft, feels inevitable if there are no systems for tracking what’s going where. Keeping things efficient is impossible without set procedures on set issues that lower-level functionaries of the system can implement without needing to do a complicated moral and logistical calculus every single time. “Efficiency” is, of course, an overused term, and valueless when it describes—as it so often does—means without reference to ends. But a healthcare system, a food distribution system, a sewage system, or any other complex system that carries life and death consequences for those who rely on it, ought to be efficient. A multitude of small calculations must be made in such a system, and it’s hard to imagine how anything like direct democracy could accomplish it, or how you’d get around the need to have decisions made primarily by people with expertise in the subject area. And so I am not quite proposing that the whole notion of bureaucracy—in the sense of systems whose day-to-day functioning is largely determined by procedures—should or could be eliminated in their entirety.
But I think there are a few things that need to be considered when it comes to bureaucracies. One is that no bureaucracies should exist that are not absolutely necessary. To me, the immigration bureaucracy is—not shockingly—a prime example of a bureaucracy that has absolutely no justifying purpose and should be ripped up by the roots and replaced with precisely nothing. There is no good reason to be tracking and evaluating and fining and imprisoning and exiling a subset of the population that happens to be living in a different place than the one where they were born. Many bureaucracies are merely fronts for resource extraction (such as the DMV and traffic courts) or data-mining and public surveillance (such as the NSA), and could be eliminated with no ill effects, and many benefits. But other bureaucracies are harder to imagine away. For example, even if you get rid of the health insurance bureaucracy, some kind of healthcare bureaucracy must necessarily exist, since a healthcare system must involve extensive decisions about and tracking of the diversion of critical resources, lest we run out of something we need.
So what about necessary bureaucracies—what do we do with them? Firstly, it seems important that any bureaucracy that retains a significant level of power should have its officials directly elected by the people whom the bureaucracy exists to serve. The president’s ability, for example, to wield direct power through opaque executive agencies is one of the chief reasons why our nominally democratic government is forever spiraling into various forms of executive tyranny. Sure, there’s a slight check in the form of congressional approval for the heads of agencies, but presidents, including Trump, have gotten around this requirement without much trouble. Bureaucrats should not be allowed to be invisible. Any person who holds significant power should have direct accountability to—which effectively means some direct mechanism for removability by—the people whose lives are affected by their decisions. Secondly, interjecting more direct public participation into bureaucracies that theoretically serve public interests is probably the only means of ensuring that these systems remain remotely intelligible and functional. Tools like public referenda, for example, could be required to endorse significant policy shifts within bureaucracies, and help ensure that their functions are optimally useful to the public, not optimally useful to unseen administrators.
The reality is that it is unwise to simply trust bureaucrats, as it’s unwise to simply trust anyone with unaccountable power. While civic-minded, virtuous bureaucrats do sometimes exist in real life, they are not the norm, and are more often characterized by their willingness to bend or break procedural rules than their commitment to following them. (Think of Chiune Sugihara or Raoul Wallenberg, diplomats during World War II who, at personal and professional risk, issued thousands of unorthodox travel documents to European Jews so that they could escape transportation to concentration camps.) Most bureaucrats you encounter in day-to-day life obey the rules, and they are awful. When right-wingers invoke the specter of Big Government Bureaucrats Coming Between You and Your Doctor (or Children, Guns, Soda, etc.), their rhetoric is frequently effective, and that’s because it reminds people of their actual, painful interactions with bureaucracies. Rather than trying to convince people that government bureaucrats are actually great, and that people are stupid for not appreciating public service—as The West Wing and Parks and Recreation attempt to do—the left should concede that 1) bureaucracies are bad; 2) at their best, they are necessary evils; 3) they will always be compromised of ordinary humans clumsily implementing best-fit rules; and 4) that constant public collaboration is necessary to prevent them from becoming burdensome and exploitative. Otherwise, bureaucracies won’t facilitate service to the public. They will instead continue to impose impossible obstacles between the public and what it needs.