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Government by Anarchy


Washington. -- We need a new taxonomy of politics. A ruling by a federal district judge proves that anarchy, usually defined as the absence of government, can be approximated by a glut of the kind of government produced by liberal legislation and judicial activism.

A federal law requires the government to file environmental-impact statements for all "proposals for legislation and other major federal actions significantly affecting the quality of the human environment." "Human" encompasses spotted owls. It is unclear what "major" and "significantly" mean.

Last week Judge Charles Richey decreed that the Clinton administration must file an impact statement regarding the North American Free Trade Agreement. The law Judge Richey purports to be enforcing was enacted in 1970. He is the first judge to discover that the president's power to complete international agreements is contingent upon the filing of impact statements.

The administration plans to appeal the decision, whatever it is. Judge Richey did not say -- how could he under the Constitution? -- that the president cannot submit, or Congress cannot ratify, NAFTA until the "impact" is calculated. His ruling may just be judicial noise, but it can be consequential. It may deprive the free-trade agreement of whatever scant momentum the president has imparted to it, and will give timid legislators, frightened by interests who are frightened by the threat of free trade, an excuse to run from it.

Regarding NAFTA, and free trade generally, President Clinton (to borrow words Teddy Roosevelt used of William Howard Taft) "means well, feebly." Mr. Clinton favors them. But of his four most relevant aides -- Trade Representative Mickey Kantor, Commerce Secretary Ron Brown, Laura Tyson, the chairman of the Council of Economic Advisers, and Treasury Secretary Lloyd Bentsen -- only Mr. Bentsen seems to have his heart in free trade. And beneath the senior levels, Mr. Clinton's administration is largely staffed by left-leaning Democrats who regard NAFTA as a disagreeable interference with the government's right to interfere with economic freedom.

Many Democrats welcome Judge Richey's ruling for the reason the political class often welcomes judicial activism (or judicial exhibitionism) regarding divisive issues such as abortion and race. By providing an excuse for temporizing, Judge Richey's ruling enables the political class to protect its ultimate value -- secure incumbency -- from the dangers posed by difficult decisions, this time concerning trade.

There is grim satisfaction to be taken from the fact that now a Democratic president is being tormented by the kind of judicial activism favored by liberals who pursue their political agendas more through litigation than legislation. And look at the legislation that has made the litigation possible.

What kind of mind believes it is possible to anticipate and quantify the "impact" on the entire "human environment" of an agreement establishing the world's largest free-trade zone, encompassing 360 million people and substantially enlarging trade with America's third-largest trading partner, Mexico? It is a mind that believes the future can be known because it can, and therefore should, be controlled by the political class. That class, according to that class, is wiser (and of course more "disinterested" and "caring") than the billions of daily decisions that propel a free society into an exhilaratingly unknowable future. This is the mind of modern government.

Imagine. Under the North American Free Trade Agreement, some U.S. agricultural exports to Mexico are apt to surge. How does one assess the "impact" of this on the "human environment?" Who knows how much the production of particular commodities will increase in the first five, 10, 50 years? How land and water and chemical use will change? How increased exports to the United States of Mexican agricultural commodities will "impact" American agriculture?

Now, multiply such questions by however many manufacturing categories you think are relevant. And peer down the years, decades, centuries, millennia, eons -- does the law say how far into the future we are to discern these "impacts?" You begin to see the dimension of the absurdity. If an "impact" statement had been required for legislation creating TVA or the Interstate Highway System (or important to the birth of the automobile or airplane or telephone), they would not exist.

Take a law that is less a law than a gesture or sentiment, a law inherently preposterous in what it requires. Stir in some interest groups (in this instance, environmentalists) skillful at using litigation for political purposes. Add a judge recklessly indifferent to precedent and to constitutional assignments of responsibilities. Factor in a political class eager to duck responsibilities. Finally, add a president eager to please but whose political party is displeased by a trade agreement that would inhibit the party's agenda for further politicizing economic life.

This is a recipe for anarchy, as the Oxford English Dictionary defines it: "absence or inefficiency of the supreme power; political disorder; absence or non-recognition of authority in any sphere; moral or intellectual disorder." It is a remarkable achievement of modern liberalism -- anarchy amid, and resulting from, a surfeit of government.

George F. Will is a syndicated columnist.

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