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Too Many Lawyers. Too Many Laws.

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Experience is often a brutal, and hence effective, tutor. The covid-19 tragedy teaches this: Government is more apt to achieve adequacy when it does not try to achieve purity.

Commenting on the widely varying results of the states’ different approaches to getting vaccines into arms, a Wall Street Journal editorial notes two things. One is the benefits of federalism: Among 50 governors, at least a few are apt to be wiser and nimbler than the federal bureaucracy. The other is: “The most successful state rollouts have departed from overly prescriptive federal rules,” and “The states with the highest per capita vaccination rates are all rule-breakers.” Philip K. Howard is not surprised.

He is a lawyer who thinks there are too many lawyers and too much law, and that both surpluses are encouraged by misbegotten ideas about ideal governance. One such idea is that ideal governance is a sensible aspiration. In the Yale Law Journal (“From Progressivism to Paralysis”), he explains why “Covid-19 is the canary in the bureaucratic mine.” Modern government “is structured to preempt the active intelligence of people on the ground. This is not an unavoidable side-effect of big government, but a deliberate precept of its operating philosophy. Law will not only set goals and governing principles, but it will also dictate exactly how to implement those goals correctly.” Result: paralysis. Governance congeals because “the complex shapes of life rarely fit neatly into legal categories.”

The proportion of lawyers in the workforce almost doubled between 1970 and 2000, and the nation now is, Howard has said, ludicrously dense with laws and dazed by “rule stupor.” Constructing the Empire State Building took 410 days in the Depression. The Pentagon took 16 months in wartime. In this century, however, nine years were consumed just with permitting for a San Diego desalination plant. Five years and 20,000 pages of environmental and other compliance materials preceded a construction project (raising the roadway on New Jersey’s Bayonne Bridge) with almost no environmental impact.

Then the pandemic arrived. Red tape prevented public health officials from using tests they possessed or buying tests overseas. To function, hospitals had to jettison myriad dictates about restrictions on telemedicine, ambulance equipment and many other matters. To get federal funding for school meals transferred to providing meals during summer months, 50 formal waivers were required from the states. And, Howard writes, “the bureaucratic instinct was relentless even when waiving rules. Each school district in Oregon was first required ‘to develop a plan as to how they are going to target the most-needy students.’ ” Meanwhile, needy children were getting no meals.

Protesters take to the streets, Howard says, on the naive assumption that “someone is actually in charge and refusing to pull the right levers.” If only. “From the schoolhouse to the White House,” Howard says, “public officials are disempowered from making sensible choices by a bureaucratic and legal apparatus” that stipulates “the one correct way” to achieve goals.

Granularity of regulation is, Howard believes, the fruit of the Progressive Era’s goal of neutral government, purified and professionalized and “untainted by the judgments of imperfect humans.” To this chimera, add encyclopedic contracts with public employee unions that insulate their members from accountability. When California can dismiss for poor performance only two of about 300,000 public school teachers a year, even mere mediocrity is optional. The Minneapolis policeman who suffocated George Floyd had been the subject of 18 complaints, but his supervisors had no practical way to terminate him. The 2,600 complaints against Minneapolis officers since 2012 resulted in 12 officers disciplined.

The Progressive Era dream — purging human judgment from public choices; eliminating human agency from the implementation of public decisions — is today’s nightmare. Government accountability now means, Howard writes, only court-enforced compliance with “the ever-thickening accretion of rules, rights, and restrictions.” So, “slowly but inevitably a sense of powerlessness” pervades public and private institutions.

The Progressive Era project that began 120 years ago got its second wind 60 years ago. But “no experts back in the 1960s,” Howard writes, “dreamed of thousand-page rulebooks, ten-year permitting processes, doctors spending up to half of their workdays filling out forms, entrepreneurs faced with getting permits from a dozen different agencies, teachers scared to put an arm around a crying child.” The quest for “a government better than people” advanced because bureaucracies became “preoccupied with avoiding error without pausing to consider the inability to achieve success.” A virulent, fast-moving and mutating virus is teaching the cost of this.

How the Regulatory State Hurts Small Business Owners

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For over two decades, “China Fun” was a culinary staple in the Second Avenue neighborhood of Manhattan. Known throughout the community as the go-to spot for peerless soup dumplings and piquant General Tso’s chicken, many locals were heartbroken to learn that their favorite restaurant had decided to close its doors forever last year.

The decision to shut down the family-owned business was not an easy choice to make. However, the Wu family claims that excessive government regulations left them no other option.

In a letter posted to the front doors of the restaurant last week, the owners wrote, “The climate for small businesses like ours in New York have become such that it’s difficult to justify taking risks and running — never mind starting — a legitimate mom-and-pop business.” The letter continued, “The state and municipal governments, with their punishing rules and regulations, seem to believe that we should be their cash machine to pay for all that ails us in society.”

The sentiment reflected in the Wu’s farewell letter sheds light on the great regulatory burden afflicting many small business owners across the country today. In addition to the numerous licenses, permits, and fees required to open a small restaurant like China Fun, government-sponsored healthcare programs and mandatory increases to the minimum wage disproportionately affect these mom and pop establishments.

For small business owners operating within the state of New York, these regulations are only getting worse.

Interestingly enough, the closure of China Fun coincided with the implementation of New York’s new increased minimum wage policy, which is set to incrementally rise each year until it reaches $15 an hour by 2021. As Albert Wu, the son of China Fun owners Dorothea and Felix Wu explained, these types of costly mandates have forced the restaurant to significantly raise its prices over the years.

“When we started out in 1991, the lunch special was $4 a plate,” Albert explained. “Now it’s $10, $12. The cost of doing business is just too onerous.”

Instead of recognizing the fact that these regulations cost local business owners both money and numerous hours spent filling out the necessary paperwork, a spokesperson for the de Blasio administration responded by saying, “The NYC Department of Small Business Services makes it easier for businesses to start, operate, and grow, including by helping businesses navigate important City regulations.”

Albert Wu and other small business owners disagree. “In a one-restaurant operation like ours, you’re spending more time on paperwork than you are trying to run your business.”

Unfortunately, the Wu’s predicament is not an isolated occurrence and it demonstrates the unintended consequences that overregulation has, and will continue to have, on entrepreneurs. 

Five Occupational Licensing Laws That Hurt Entrepreneurs

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Occupational licensing laws prevent individuals from working. This has had a particularly harsh effect on entrepreneurs looking to go into business for themselves. Not only must they pay for all the typical costs associated with starting a business, they must also ask the government for the permission. And this permission comes with a price tag.

Not only do these licenses come with strict requirements and fees, they do nothing to prepare workers for their careers. In fact, occupational licensing does nothing aside from benefitting established industries and adding to government coffers. But unfortunately, these permits regulate much of the workforce.

And while much has been written on this topic, here is a list of five ridiculous occupational licensing laws.

License to Massage a Horse

This may sound almost too ridiculous to be true, but in some states conducting a horse massage, also known as equine myofascial release, requires certification. But since there exists no certification specific to this trade, some states mandate veterinary school completion before one can become a practitioner.

There is just one problem with this, veterinary colleges do not teach equine myofascial release, so these licensing requirements are completely arbitrary. More on this silly licensing law here.

 

Makeup Artist

Can you imagine mandating that all painters must obtain a license before they are able to sell their art? This is exactly how ridiculous it sounds when governments require makeup artists to obtain cosmetology licenses. And yet, this field is heavily protected in all 51 states across the country.

But these types of laws place unnecessary hurdles in front of ambitious entrepreneurs who just want to make money from their artistic skills. Read more about the individuals being harmed by these types of laws here.

 

License to YouTube

In case you needed any proof that the government will go to any lengths to incorporate more regulatory policies, look no further than YouTube. Last year, Cobb County Georgia shut down a video gamer who had found a way to monetize his YouTube views. While most would applaud the way this young man had utilized YouTube to fund his life, the county did not see it that way. Claiming that he lacked the license necessary to run this operation out of his home, he was stripped of his ability to earn a living.

The worst part of this whole ordeal: no such license even exists. Read more here.

 

Dietician

The government has been a horrible bearer of nutritional information. The food pyramid has proven itself to be riddled with misinformation that has only furthered our country’s obesity and health issues. And yet, the state would still like to be in charge of who is allowed to give nutritional advice to consumers.

Even though the topic of nutrition is broad, with different diets better suited for some people over others, the government likes its one-size-fits-all approach. The license required to be a dietician is incredibly burdensome and prevents many from getting ahead in their careers. Read about how this law prevented one entrepreneur from getting ahead here.

 

Nail Technician

Just like cosmetology is heavily regulated, so is the rest of the beauty industry. Everything from shampooing hair commercially to applying makeup is so heavily regulated, that it makes it hard for those with natural talent to get ahead. The nail technician industry is another example of this.

If someone has a talent for applying nail polish or doing manicures, they should be allowed to do so as long as the consumer is willing to exchange money for this service. But even though this is not a dangerous task, the state has placed heavy restrictions on this industry, restrictions that have hurt many individuals. To read how this particular licensing law is impacting those from high-risk areas, click here.

Licensing Boards Are Inhibiting Free Competition in the Market

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Imagine attempting to open a bakery that specializes in cakes. But before the business can even get off the ground, the government pays you a visit and informs you that unless you also bake and sell pies in addition to the cakes, it will not allow you to legally open your bakery.

This sounds silly to you at first, but the government insists that since pies and cakes are traditionally both sold in bakeries, that is just how the law works. You can either comply or abandon your dream of owning a specialty cake bakery.

Regulations Are Stranger Than Fiction

While this may be nothing more than a fictional scenario, regulations this outrageous do exist. And what is worse, they prevent many from obtaining their entrepreneurial dreams. In fact, a similar situation is currently happening in North Carolina, where one makeup artist’s dream of opening a cosmetology school is being stifled by a peculiar occupational licensing law.

North Carolina resident, Jasna Bukvic-Bhayani wants to open a school where hopeful cosmetologists can come to learn the tools of the trade. As a makeup artist herself, Bukvic-Bhayani found teaching makeup artistry to others to be both rewarding and lucrative. But the state shut her down before she could even begin.

As a certified cosmetologist, she has already obtained all the permits and licenses necessary to practice her craft in exchange for compensation. But even though she is permitted to practice cosmetology she is forbidden from teaching this craft to others unless she also teaches esthetics.

The field of esthetics involves procedures like microdermabrasion, body waxing, and facials, none of which Bukvic-Bhayani desires to teach at her school. Even still, the North Carolina Board of Cosmetic Art Examiners told her that unless she intends on turning her school into an esthetic school as well as makeup artistry the state will not allow her to open up for business.

But incorporating esthetics into her curriculum isn’t as easy as simply taking a few weeks to go over the basics. Instead, this will force her to spend at least $10,000 on esthetic equipment in addition to the hundreds of wasted hours she will spend teaching a skill she doesn’t want to teach. For a student to be a state-certified cosmetologist they must complete at least 600 hours of esthetic training, whether they want to practice this skill or not.

Bukvic-Bhayani has insisted that esthetics is not a part of the business model for her school, but the state doesn’t care. Since many cosmetic schools also teach esthetics, the state claims that this should be the norm for anyone wanting to open a school involving cosmetology in any way.

Surveying the Competition

What is even more disturbing than the fact that Bukvic-Bhayani is being prevented from reaching her entrepreneurial dream is how the state came to learn of her school’s existence in the first place.

In order to attract prospective students to her school, Bukvic-Bhayani paid for online advertising. Unfortunately, the North Carolina Board of Cosmetic Art Examiners makes a habit of monitoring facebook ads in an attempt to catch those who may not be following their rules. This is exactly how Bukvic-Bhayani came to be on the board’s radar.

And this type of monitoring is not specific to the realm of cosmetology. A year ago, a mother was fined after a health inspector caught wind that she was selling Ceviche that was not first approved by the state’s health department. By scouring facebook groups that serve almost as digital farmer’s markets, these regulatory boards have prevented many individuals from earning a living.

These boards also encourage a dependence on the state before one is able to put forth an entrepreneurial idea and getting ahead in life.

In the Road to Serfdom, F.A. Hayek even warns often of the dangers that follow when a state bars entry to certain vocational fields. It is certain he would be disgusted today to see just how far this practice has expanded.

These regulations are usually crafted by those already in the field. By setting all these hefty regulations, they can limit who is allowed to enter the field. In other words, they are given the unjust privilege of deciding who is allowed to compete in the free market, and who is not. 

Luckily, the nonprofit organization, Institute for Justice has come to Bukvic-Bhayani’s aid and is helping her fight for the right to earn a living. And they have found a rather creative way to combat this regulation.

The First Amendment protects an individual’s right to speak for a living. But this protection does not extend only to the individual’s right to speak out against the government. It also extends to one’s profession. This serves to protect speakers, authors, journalist and yes, even makeup artists.

Institute for Justice has a long track record of doing its best to fight for the rights of those who want nothing more than to earn a living without fear of government intrusion. Hopefully, this story will end with the opening of Bukvic-Bhayani’s cosmetology school.

Even Hollywood Celebrities Encounter Government Red Tape

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Nick Offerman is disappointingly not as liberty-minded in real life as the beloved Ron Swanson character he portrayed in the series Parks and Recreation. But in a video released a few months ago, Offerman gets a taste Swanson’s anti-regulatory sentiment when he tries to open a whiskey distillery and is met with obstacles from the government.

Offerman has been painstaking leftist on Second Amendment issues and endorsing political candidates — a huge contrast from the character that has become a reference point for libertarians attempting to explain their political beliefs to family members, who have no idea what it means to be neither  Democrat nor a Republican.

Red Tape

While Offerman has not been a champion of liberty in his offscreen life, his love of fine whiskey may be the one issue that turns him from statist celebrity to libertarian hero.

In his video entitled, Nick Offerman’s ‘The Offerman Distillery’, the actor attempts to open his own distillery but soon learns that the government requires an occupational permit in order to do so. Confused and irritated that opening a distillery is such a monstrous bureaucratic feat, Offerman highlights one of the most frustrating forms of government red tape, preventing otherwise productive individuals from earning an honest living.

Expressing his desire to combine his love of whiskey with his love of doing good for other people, Offerman tells his viewers why this distillery is so important to him. Wanting to open his appropriately named “Offerman Distillery” in Scotland’s Isle of Sky, he stakes his sign in the fresh ground and sets off to work.

Aptly demonstrating how all governments seek to control the economies of their various nations, Offerman soon discovers that Scotland has just as much entrepreneurial red tape as the United States.

Can’t Use Your Name?

Just as he begins telling viewers why his whiskey is sure to beat out all the others, his phone rings. A bureaucrat is on the other end of the line, telling Offerman that he needs to apply for a permit, have a full background check conducted, and — taking a swipe at intellectual property — informs him that he does not have legal permission to use his own last name in the distillery, since another company has already had his name trademarked.

A frustrating and relatable montage ensues in which Offerman learns he needs a license before he can apply for the required permit and then proceeds to endure a round of irrelevant questioning from the faceless agent of the state. Finally, after being subjected to the horrors of  “on hold” music for what seems like hours, someone finally answers, only to tell him he will be placed on hold yet again.

After calculating the amount of paperwork and various government procedures that he must complete, Offerman resolves that it will be at least 23 years before he is able to produce his first bottle of whiskey.

As is government’s specialty, the state’s hurdles crush Offerman’s entrepreneurial spirit. Realizing how tedious it is to set up an above-board distillery, Offerman moves his business to the “black market,” selling his whiskey from a homemade booth akin to lemonade stands run by children in the summer.

Unfortunately, he is quickly told that his actions are illegal and he abandons his effort entirely.

While Offerman’s comedic skills make this experience both hilarious and infuriating to the viewers, he has, perhaps unknowingly, channeled his inner Ron Swanson.

While it may have only been for a few moments, Offerman shows that even celebrities have at least one issue where their views are, often unknowingly, libertarian. And for this Parks and Recreation star, the government better keep their hands off his whiskey.

How One Millennial Fought Back Against Red Tape

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Millennials have been major catalysts in changing the rules of the traditional marketplace. Impatient and eager to move on to the next big thing, we are a generation born to innovate. But venturing into uncharted territory, though groundbreaking, means that we have to force the traditional market to evolve with our revolutionary methods.

From the sharing economy to food trucks and hipster-made craft beer, millennials have found a way to make money in a manner that fits their unique lifestyles. As with most successful market endeavors, the only thing preventing millennials from making an even greater impact on the economy is government bureaucracy.

Rebecca Mueller left her career in the finance world to pursue her dream of being a fashion designer. After graduating from fashion school in Chicago, Mueller decided not to relocate to greener pastures and instead set out to contribute to the local economy.

Planning to buy all her supplies from local vendors, Mueller wanted to open up a mobile boutique that would operate like a closet on wheels. Confident in her interpretation of the city statutes on peddler licenses, Mueller headed to City Hall full of hope and ready to make her dream a reality. It didn’t take long for her dream to turn into a bureaucratic nightmare. At City Hall, she was denied her peddler’s license.

Mueller had purchased a 25-foot truck and had planned to stop at different locations around the city and sell her original clothing. Unfortunately, the city informed her that in order to qualify for a tradition peddler’s license, she would not be able to park her mobile boutique and set up shop. This is a problem that many foods truck owners have faced while attempting to start their businesses.

The city assured Mueller that they were working on legislation to cater to innovative businesses like hers, but there was no clear answer as to when this would actually happen. After months without any real answers, Mueller was no closer to opening up her boutique.

Enter Institute for Justice

Desperate to get the wheels rolling, she decided to seek help from Institute for Justice’s (IJ) law clinic on the University of Chicago campus. IJ was able to tell Mueller what the government neglected to, that in fact there was a license available that would allow her business to operate her unique business.

The “emerging business license” was created in 2012 to accommodate for innovative businesses which do not fit into preexisting regulations. The emerging business license gives the entrepreneur two years to operate their business. The understanding being that in those two years, the local government will work to create reasonable regulations. However, prior to Mueller’s inquiry, the license had only been issued once since 2012. Fortunately for Mueller, she was able to get approved for the emerging license and after large amounts of time and money were spent, her mobile boutique was able to open up earlier this month.

When it comes to innovative Millennials trying to start new businesses, Mueller’s sentiment expressed in her local op-ed really drives the point home:

I hope the next novel business to make its way to City Hall is met with a red carpet instead of a maze of red tape.

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