A few years ago, more than 100 anonymous complaints about awnings flooded San Francisco’s Department of Building Inspection, leading to dozens of citations for small businesses. It turns out San Francisco has 11 pages of building codes regulating awnings, canopies, and marquees.
It was a classic story of San Francisco dysfunction, pitting small-business owners in mostly immigrant neighborhoods against bureaucrats. City leaders responded to the resulting outcry by temporarily suspending fines and issuing a moratorium on citations. They later expedited the permitting process for new awnings and waived fees for business owners to get their awnings grandfathered in. After considerable uncertainty and hassle, business owners could follow an elaborate process of submitting paperwork and photos and undergoing inspections — all for pieces of canvas and vinyl that do little more than shade doors and windows.
This was a problem created, then “solved,” by the city, with heavy burdens imposed along the way — on business owners, scarce public resources, and our shared trust in government.
Awning-gate shows how progressive governments can be blind to the mistrust, rage, and despair engendered by excessive bureaucracy. From the perspective of the business owners, the regulatory state wasn’t a protector but a weapon used against them.
The same story repeats across countless local, state, and federal regulations. A pervasive frustration with bureaucracy fuels the appeal of figures like Donald Trump and Elon Musk; the latter, as co-leader with Vivek Ramaswamy of the so-called Department of Government Efficiency, is promising to cut regulations and fire half of all federal bureaucrats.
Musk has identified the right problem, but he’s offering the wrong solution. Halving the government workforce would mean longer wait times, not shorter ones. The federal government may actually be undersized relative to the population; its staffing is at about 1969 levels, but the population has increased almost 70% since then. And while some regulations defy common sense, others are necessary.
The political left, long the champions of the regulatory state, needs its own response to runaway bureaucracy. Yes, there need to be fewer rules, but we also need more discretion.
Consider San Francisco’s awning debacle: It would be good to have just one page of rules about awnings, but there’s no simple delete button for ordinances and legislation. The only practical solution is to grant building inspectors more discretion in how they interpret rules. More discretion could have averted the entire mess. “Our inspectors aren’t out trolling the streets looking for awnings that violate the building code,” DBI spokesman Patrick Hannan said at the time. “We are legally bound to investigate all complaints and issue notices of violation when a complaint is valid. It’s not optional.”
When mandatory enforcement is imposed on a bureaucracy, it removes flexibility and common sense. I’m thinking of the friend whose passport application was denied by the State Department because he forgot to put “Jr.” under “suffix,” and the friend forced to reapply for her teaching credential after a six-month wait at the California Department of Education because her signature on the first application was not “ink-dried.” Without discretion, government staff are forced to impose burdensome rules categorically, even when they recognize that the rules are counterproductive in a particular case.
Discretionary enforcement, by contrast, lets people bend or ignore rules when sensible. Police officers understand that jaywalking laws are necessary but don’t always need to be enforced. Sometimes allowing jaywalking can speed the flow of pedestrian traffic in crowded areas. In other cases, like in accident-prone intersections, enforcement can actually save lives.
Imagine if our building inspectors had the same discretion as our cops. They could prioritize complaints that merit investigation, determine whether particular violations are actually a threat to public safety, and offer solutions without needing so much time, money, or paperwork. Instead, San Francisco lawmakers had to intervene, drafting and revising ordinances and resolutions, requiring letters and public comment, dragging out the conflict for months, leaving shop owners under governmental threat for far too long.
Discretion allows bureaucrats to balance public safety with local needs, ensuring regulations serve the public good rather than creating unnecessary burdens. This is familiar in policing; wise officers often refrain from arresting people after learning the full circumstances of a situation. Police do this not only because it is often the right thing to do but because they know how much public hostility they would spark by making arrests for every last misdemeanor.
Restoring discretion to street-level public servants and giving them the training to exercise it well does more than just increase efficiency. It humanizes governance, making civic interaction feel like a relationship between people, not between a person and a sprawling catacomb of rules and robotic enforcers.
Discretion has potential dangers, of course: Officials can be biased; giving them more power can open the door to bribery and other forms of corruption; and they, like police, can exercise poor judgment.
But with the right training and safeguards, more discretion could reduce wait times for permits and decrease governmental costs. At the federal level, it would let immigration officers, Environmental Protection Agency administrators, or passport agents make smart decisions based on their expertise. As citizens start to see bureaucrats as allies rather than enforcers, they’re more likely to view regulations as tools for safety and fairness, rather than weapons wielded against them. This is true in San Francisco and Washington.
We are long overdue for an examination of unnecessary regulation. But we are also overdue in enabling wise judgment by the people who do the day-to-day work of governing. Discretion exercised wisely could rebuild trust in government. Let’s transfer the work of governing from rules to people.
Barry Lam is a professor of philosophy at UC Riverside, host of the “Hi-Phi Nation” podcast, and author of “Fewer Rules, Better People: The Case for Discretion.”