A Thought Experiment Where Washington Needs a Permit to Cross the Delaware

This is a thought experiment, and it is satire. Nothing in the next several sections happened. No agency named here ever received Washington's application, no official said the things I put in officials' mouths, and every form, deadline and meeting below is invented for the joke. The real events are described at the end of the post, in plainly marked sections, and the rules I mock are real rules that govern real projects today. If you came here for a news report, this is not one. If you came for a laugh at paperwork's expense and an argument about liberty, pull up a chair.

Picture the scene, then, in a country that runs on permits. It is December 1776. The Continental Army is shrunken, hungry and ragged. Enlistments end in a week. The Declaration is five months old and the cause looks lost. General Washington has a plan to cross the Delaware River at night, in winter, and surprise the Hessian garrison at Trenton. He needs only boats, men, nerve and about nine hours of darkness. What he does not have is a Form 27-B.

Day one: the intake desk

The general rides to the Office of River Crossing Coordination, which is open Tuesday and Thursday from ten to two, and takes a number. The clerk, a pleasant man named Gerald, who is entirely fictional and who is just doing his job, asks whether the applicant has a pre-application conference on file.

"I have an army," says Washington.

"Is the army registered as a regulated entity?"

"It is the Continental Army."

"I'll need that in the field marked 'Entity Type.' Do you want to check 'Other'?"

Washington, who has dealt with Congress, takes it calmly. He is told that a crossing of a navigable river by a force of two thousand or more persons falls under the Nocturnal Water Transit Rule, and that a determination of jurisdiction must precede any application. The determination takes ninety days. He asks whether there is an expedited track. There is: it takes sixty days and costs more. He asks whether there is an emergency track. There is, and it is for floods.

The environmental review

The first real hurdle is the environmental review. In our world, the National Environmental Policy Act of 1969 requires federal agencies to study the environmental effects of major federal actions before taking them. It is a well-meant law and it has produced some very thick binders. In our satire, the law has been extended to cover the movement of armies.

The agency requires a scoping notice, a draft assessment, and a determination of whether the crossing is a "major action significantly affecting the human environment." Washington's staff explain that it is a single night's crossing of a river. The agency replies that the question of whether it is single is itself under review.

The draft assessment must consider alternatives. The agency invites Washington to analyze the "no-crossing" alternative, which has the advantage of avoiding all disturbance to the river and the further advantage, from the Hessians' point of view, of leaving them asleep. It also asks him to analyze the "upstream crossing," the "downstream crossing" and the "crossing by bridge." There is no bridge. The agency notes that this is a finding.

A consultant is hired to count the river's wildlife. A second consultant is hired to review the first consultant. The shad, being fish, are not available for comment.

Total elapsed time: fourteen months. The Revolution is over, and in the wrong direction.

The boat inspection

Suppose, for the sake of the joke, that Washington somehow gets past the environmental office. The next stop is the inspectors, because the boats are the next problem. The mariners of John Glover's regiment from Marblehead, Massachusetts, the sailors and fishermen who will actually do the rowing, bring a fleet of river boats that carry cargo, and a modern safety authority has some questions.

Where are the life jackets? There are none. Where are the passenger manifests? There are none. Are the boats certificated for passenger service, and if so, for how many passengers? They are certificated for iron, and it is not clear for how much. May a cargo boat carry artillery? It may not, until it has been re-rated for artillery. May it carry horses? There is a separate form for horses.

The inspectors are decent public servants and they point out, correctly, that rivers kill people. Every rule they cite exists because somebody once drowned. That is the fair thing to say about any safety regulation, and I will come back to it. But there is a difference between a rule that saves a ferry passenger and a rule that stops a revolution, and our imaginary inspectors do not have a box on the form for telling the two apart.

The night-operations waiver

Now the timing. The crossing is planned for night, because surprise is the point, and the modern permitting state has a waiver for that. Operations after dark on the river require a night-operations waiver, which requires a lighting plan, a lookout plan, and a notice to other river users. The lighting plan calls for lanterns on every boat. The army's plan calls for no lights at all. Applicant is advised that the plan is "inconsistent with standard practice" and is sent to the exceptions committee, which meets quarterly.

The committee, to its credit, is impressed. It asks only that the army also file a weather contingency. It is Christmas night, with sleet and snow coming on and a nor'easter blowing, and the contingency form asks what the applicant will do if conditions are "unfavorable." Washington writes: "Cross anyway." It is rejected for lack of detail.

The public comment period

The final stage is the one the permitting state loves most. Any major action must be put out for public comment. The notice goes out in the Trenton paper and on the bulletin board at the tavern. It states the date, the time and the place of the proposed crossing, the number of troops, the objective, and the contact information for submitting concerns. Comments are due in thirty days.

You can see where this is going. The Hessian commander, Colonel Johann Rall, in our satire, is a careful reader of the local notices. The comment period gets a response from a regional commander who writes in, politely, to say that the proposed crossing "may have unintended consequences for the garrison at Trenton" and requests an extension. He is granted one. The extension is also noticed.

We should pause here to admire the efficiency of the system. It has found a way to make a surprise attack public, scheduled and open to appeal. The army has not moved an inch. The only thing the paperwork has crossed is the Hessians' desk.

Back to the real crossing

Now the joke is over, and what follows is history, not satire.

On the night of December 25, 1776, Washington took a force of about 2,400 men, the number left for the attack, across the Delaware River at McConkey's Ferry, in Pennsylvania, to the New Jersey shore. The weather was foul, with ice in the river, sleet and snow driving. The boats were handled by Colonel John Glover's Marblehead regiment, men who made their living on the water and who got the army, its horses and its cannon across in the dark. It took far longer than planned, and the troops marched about nine miles in the cold toward Trenton. The attack came at dawn on December 26. It was over quickly. The Americans captured nearly a thousand Hessian soldiers at a cost of very few American casualties, and a victory that cost very little changed the mood of the entire war.

Ten days later, after a second battle at Trenton and a night march to Princeton, the Americans had also won at Princeton, and the British had been pushed back toward New York. The cause that had looked lost in December was alive in January. The full story is in Crossing the Delaware on Christmas Night and the Ten Days That Saved the Cause, and the winter that tested the army the year after is in Valley Forge Was a Winter of Hunger That Turned Farmers Into an Army.

Days before the crossing, Thomas Paine's words had been read to the troops: "These are the times that try men's souls. The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman." That was the real comment period. The army heard it, and it crossed. For more on that, see Thomas Paine's The Crisis and the Words Read Aloud to a Freezing Army.

The argument behind the joke

Satire is only worth a post if it points at something true, so here is the argument, in numbered premises.

1. Free action needs room to start before it asks permission. The Founders lived under a government that required a license for much of ordinary life, and they said so in the Declaration. One of the grievances against the King reads: "He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance." That sentence was about Britain, not about us. It describes a pattern, though, and the pattern repeats wherever government adds a permit for every act.
2. Every permit has a cost in time, and time is a resource. The Revolution survived because Washington could move in ten days. A project that must wait fourteen months for a determination is a project that may not get built. We are not talking about war now, but about ordinary building: roads, bridges, pipelines, power lines, housing. The Competitive Enterprise Institute counts 2,441 final rules in the Federal Register for 2025 and 3,248 for 2024. That is a great deal of reading for anyone who wants to build anything. You can see the full flow of the rules on the red tape page.
3. The rules are not the enemy; the stacking is. Each rule has a defender and a reason. The trouble is the accumulation: reviews that require other reviews, each with its own comment period and its own right of appeal, until a project that took a summer takes a decade. Nobody voted for the total. It built up one sensible rule at a time.
4. Permission-asking changes the character of a people. A free people is one that assumes it may act unless a law says otherwise. A permit state assumes the reverse: that you may not act unless an official says yes. Over time that habit turns citizens into petitioners. Washington's army would have made the better citizens for not having been asked.
5. The check on power is the law, not the clerk. The Constitution limits what government may do and gives it specific powers. It does not give any official a general power to approve or disapprove the peaceful acts of free people. The Tenth Amendment says the powers not delegated to the United States nor prohibited to the states are reserved to the states respectively, or to the people. The word "people" is in there on purpose.

The strongest objection

Here is the objection, fairly stated. Permitting rules exist for good reasons. Rivers do drown people. Projects do pollute. A wrongly sited plant can poison a town's water, and the public has a right to know and to be heard before the harm is done. To mock the process is to mock the protections. And the satire is rigged: an army at war is not a pipeline, and no one proposes to make Washington file a form.

That is a good objection, and I accept the main part of it. Safety rules and environmental rules protect real people, and people who are harmed by a project are entitled to a hearing. I am not arguing that there should be no rules. I am arguing three narrower things. First, that a review should have a clock, so that "no decision" cannot become the same thing as "no." Second, that the number of overlapping reviews should be counted, and the total should be visible to the voters who live under it. Third, that the burden should fall on the government to show why a peaceful act needs permission, instead of on the citizen to show why it does not.

As for the rigged satire, yes, it is an exaggeration. That is how satire works. It takes a real tendency and runs it down the road one step further than its defenders will, to see whether it falls over. The tendency is real. People who have tried to build things in modern America have stories about it that sound like they were written by a comedy staff, and the comedy staff is not needed.

What the crossing teaches

The real lesson of Christmas night, 1776 is not about boats. It is about what the Declaration was asking of the people who signed it. They had pledged "our Lives, our Fortunes and our sacred Honor" to a cause that had no legal authority at all except the authority they claimed for themselves. Every act of the Revolution was unauthorized in the eyes of the Crown. The army that crossed the Delaware was, from the King's point of view, committing a crime.

A free people cannot wait for permission to act, because freedom is the permission. The moment a society decides that every serious act requires a license from above, the habit of freedom starts to wither. It does not happen all at once, and nobody sets out to do it. It happens one form at a time.

Mind you, I do not want to leave you thinking that the answer is to ignore the law. The Revolution was a different case: it came after a long train of abuses, as the Declaration says, and after petitions had been answered with injuries. The remedy for modern permit bloat is not rebellion. It is the ordinary, boring work of citizens: reading the rules, asking your representatives to put clocks on reviews, and supporting those who will clear out the underbrush. That work is the heir of the crossing.

For more reading, try George Washington Gave Up Power Twice and Changed What Leaders Could Be, which is about what he did when he had all the power, and The Pilgrims Tried Common Property and Went Hungry Until Bradford Changed It, which is about what happens when a community stops letting people act on their own account.

The case in brief

1. This post was a labelled thought experiment: no permit office ever stood between Washington and the Delaware, and the rules mocked here are real rules stretched for effect.
2. The real crossing of December 25 to 26, 1776 was an unauthorized, risky, well-led operation by about 2,400 men that produced a victory at Trenton and revived the cause.
3. Permits and reviews exist for good reasons, but their accumulation has a cost in time, and time decides whether many things get built at all.
4. The remedy is not defiance but reform: clocks on reviews, a count of how many overlap, and a burden of proof on the government.

What you can do: look up the Federal Register's list of final rules for an agency that affects your trade or your town, and ask your representative's office in writing whether it supports a time limit on reviews.