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Tear Down Arbitrary Government—And Don’t Rebuild It

April 2, 2020

April 2, 2020
By Timothy Sandefur

In today’s crisis, it’s essential that government reduce as much as possible the barriers that prevent supply from equaling demand. After all, Americans can’t take precautions against infection unless they can be sure their needs—for both products and services—will still be met. An emergency Executive Order (No. 2020-17) from Arizona Governor Doug Ducey takes an important step in that direction by reducing some government burdens on licensed professionals.

The order delays the expiration date for licenses by six months and defers requirements for “continuing education” if those requirements can’t be satisfied by online learning. It also eliminates rules against online learning, and—most remarkably—requires state agencies to issue a provisional license to people who can’t take the licensing exam due to the closure of private testing centers. The order applies to a wide variety of occupations—everything from barbers to podiatrists to insurance agents.

This is an important, commonsense step. But like many of the temporary reforms we’ve seen in recent days, it’s a good indication that many existing regulations are already too cumbersome, obsolete, and unjust to remain in place once we beat this thing.

Licensing and permit requirements are supposed to protect public safety, but in reality they often hinder economic growth and restrict productivity in ways that only benefit existing businesses by blocking potential competition or innovation. And one way they do this is through vagueness, uncertainty, and delay.

Many licensing or permit requirements are written in vague terms such as “good cause,” or give bureaucratic officials power to deny permits based on subjective criteria. For example, the zoning rules in Mesa, Arizona, say you can’t build a house unless it has “adequate design features to create visual variety and interest,” and “create[s] a distinctive and appealing community.” What do these terms mean? As with most vague legal terms, they mean whatever bureaucrats say they mean.

On top of that, permitting agencies are often not required to give people a specific deadline for when they will get a “yes” or “no” answer. That means government can drag out the permitting process indefinitely, knowing that, thanks to a legal principle called “ripeness,” applicants aren’t allowed to sue the agency until it gives them an answer. On top of that, applicants who are wrongly denied permits are often forced to appeal through the administrative process instead of through the legal system—meaning their cases are decided by the same agency that denied them a permit to begin with, and these administrative hearings don’t have to follow the rules of evidence and procedure that protect individual rights.

The U.S. Supreme Court said this was all unconstitutional more than 50 years ago. It said whenever the government requires you to get a permit, the criteria must be clear and unambiguous, the deadlines must be specific, and you must have the right to challenge a wrongful denial in court. But state and local governments often ignore these requirements. That’s why we at the Goldwater Institute proposed the Permit Freedom Act, which makes these three modest reforms.

During peaceful times, we can afford the luxury of a slow, cumbersome, complicated bureaucracy. But now that productivity and trade have become so essential to maintaining the state’s economic survival and physical health, the urgent importance of a rational and clear regulatory system has become all the more clear. Once we’ve weathered this storm, Arizonans should demand that vague, sluggish, and arbitrary licensing requirements are eliminated permanently.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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