Opinion: Rebuilding economy will require rethinking government’s role

To better understand the recent surge of criticism and resistance against government-mandated lockdowns and stay-at-home orders, take a closer look at the Commerce Department jobs report published last week.

In April, the United States lost a staggering 20.5 million jobs, with the unemployment rate skyrocketing to 14.7 percent.

Those numbers suggest the economic costs of the COVID-19 pandemic response will be staggering. The losses will be compounded by the countless number of small businesses that will likely never reopen, diminished household incomes and savings, and massive public debt.

As the hard work of rebuilding the economy begins in the months to come, one lesson should be clear: The way forward will require government to get out of the way so that the private sector can focus on building, producing and innovating. And the most important contribution the government can make to the recovery is to reduce the senseless laws and regulations that restrain growth.

To be sure, the government has played a significant — though sometimes controversial — role in the pandemic response, through its power to coerce and restrain.

Imposing quarantines, shutting down businesses, sending stimulus checks and issuing stay-at-home orders are genuinely debatable steps, but perhaps they were necessary, at least in the short term, to address a public health emergency marked by unknown risks.

But we’ve also seen substantial evidence that the government’s regulatory powers have made things worse. Across a wide range of areas — restricting healthcare licensing regimes, barriers to entrepreneurship and misguided land use regulations — government policies are hurting more than they’re helping.

Right now, especially as states and localities begin phased reopenings, is an ideal time to rethink many of the policies that hold back growth and innovation. The organization I lead, Pacific Legal Foundation (PLF), published a report detailing four areas in which federal, state and local government leaders can help by simply getting out of the way.

First, it’s time to liberate the healthcare sector by ending counter-productive regulations.

For years, we’ve fought to end “certificate of need” laws, which prohibit healthcare providers from increasing the supply of services without permission from the government. These changes would bring more entrepreneurial energy into the healthcare sector, where such energy is desperately needed to respond to new challenges.

Likewise, PLF has called for easing the restrictions on healthcare professionals working across state lines and reforming licensing laws for healthcare workers, both of which would allow these vital service providers to adapt to changing conditions and shift resources to where the better belong.

Second, we’ve appealed to lawmakers to lift restrictions on entrepreneurship so that Americans can get back to work.

By reducing the burden of occupational licensing requirements, liberating freelancers and gig workers to pursue their chosen work, and lifting restrictions on home-based businesses, governments will unleash a wave of entrepreneurial energy that will make it easier for American workers to get back on their feet.

Third, PLF makes the case that protecting property rights are key to expanding economic opportunity.

Easing restrictive policies like occupancy restrictions, unnecessary limits on development and endless permit reviews will go a long way toward boosting the recovery, while at the same time addressing the need for more affordable housing. Sheltering in place, after all, requires shelter. In addition, we need to speed the ability to redevelop and repurpose shuttered offices, hotels, and other businesses.

Finally, we’ve advocated for reducing the role of administrative bureaucracy over American life.

While entrepreneurs and workers look to step up to create the new businesses and opportunities that will move the economy toward recovery, it’s time we diminish the power of regulators, rule makers and bureaucrats.

Reducing outdated and burdensome regulations, and restoring the constitutionally required separation of powers that limits government authority, will be critical steps in transferring more control and responsibility to the people, and away from Washington and state capitals.

The public health emergency we’re facing isn’t over, but we must begin thinking about what comes next.

The private sector will have to lead the way to get the economy back on its feet. Government at all levels — federal, state and local — should focus on doing what it can to step aside so that the nation’s entrepreneurial energies can be unleashed.

Otherwise, the coronavirus tragedy will be further compounded by economic disaster.

This op-ed was originally published by InsideSources on June 3, 2020.

Pacific Legal Foundation Op-Ed June 03, 2020  By STEVEN D. ANDERSON

Restrictive housing policies put low-income city residents at risk during COVID-19

In the 19th century, epidemics and crowded tenement housing went hand in hand. Cholera, smallpox, and even the bubonic plague swept through America’s slum housing in numbers that make the COVID-19 epidemic seem like a case of the sniffles.

Unfortunately, today’s housing policies in many urban areas make low-income and minority city residents most at risk of catching infectious diseases. And as the COVID-19 pandemic’s tragic results in cities like New York have now made clear, housing and zoning reform is one of the best ways to protect many city residents.

As early as 1820, the link between overcrowded housing and health was established in official reports, according to A History of Housing in New York City, by Richard Plunz. He notes that one out of every 27 New Yorkers died in 1859, as a result of “urban killers” like cholera, smallpox, typhoid fever, malaria, yellow fever, and tuberculosis.

In 1890, an influential reformist book, How the Other Half Lives, by Jacob Riis, chronicled tenement living with as much contempt for the bad housing as for the people who lived there. Riis described, block by block, the overcrowded, unsanitary housing, while criticizing the poor, ethnic residents as “content to live in a pig sty,” ignorant, lazy, thieves, beggars, tramps, drunkards, greedy, stupid, and so on.

Riis noted that the tenements were “hot-beds of the epidemics that carry death to rich and poor alike.” And that prejudiced outlook drove much of the urban housing reform movement: It was one thing for the “contemptible” classes to die in their slums but quite another for their diseases to spread to “respectable” Americans.

Housing reform throughout the 19th and 20th centuries had a common tactic: The best way to address the problem was by getting rid of the poor, and the best way to get rid of the poor was to get rid of their dwellings. Indeed, the primary reason conservative members of the Supreme Court voted to uphold one of the nation’s first zoning laws in 1926 was to prevent the spread of “apartment houses,” as the slum tenements were known, because they would become parasitic nuisances in otherwise-nice neighborhoods.

In more recent times, “urban redevelopment” and central-city highway construction had a particularly adverse impact on minority neighborhoods. Much poor and working-class urban housing was destroyed, but little was rebuilt.

But whether it was early reform efforts to punch windows in airless apartments, mandating air shafts, or setting minimum building standards, there were gradual improvements. These reforms, combined with economic growth and modern medicine, did much to relieve the urban overcrowding and disease so prevalent in the 19th and early 20th centuries.

That history makes today’s zoning and land use policies appear quite ironic. Instead of allowing people to create and move to lower-density housing if they so choose, today’s planners and politicians strive to pack more people into denser cities, serviced by crowded rail and bus systems. This is all necessary, we are told, to protect environmental habitat and save the climate.

Thus, urban growth lines have been drawn, outside of which—in some cities, such as Portland—it is nearly impossible to build. Urban economist Randal O’Toole has described this so-called “smart-growth” planning model as one that is not building for the American dream, but as the title of his book puts it, for the American Nightmare: How Government Undermines the Dream of Home Ownership.

But the irony on top of irony is that environmental and zoning restrictions have reduced new home and apartment construction in coastal regions to a fraction of what is needed to maintain existing population trends. As a result, existing housing has become outrageously expensive. Families once again are doubling up. Worse, our streets are filling with homeless encampments as bad as any of the slums of the 19th century.

And like those slums of yesteryear, the homeless camps are becoming beset by illness, through no fault of the people forced to live in them. Diseases once thought eradicated from America are back with a vengeance, as cases of antibiotic-resistant tuberculosis and cholera surge among the homeless. Now, with COVID-19, some of the homeless are being sheltered in empty hotel rooms in order to protect the rest of us. But how long will this stop-gap altruism last?

And even aside from the homeless camps, dense urban living is far from ideal. With greater density comes greater crime, worse schools, and more opportunity for disease. With COVID-19, who wants to ride on a crowded train or bus, if given a choice? How many social-distancing urban dwellers cooped up in small and crowded apartments would not rather live elsewhere?

Don’t let the past be our future. Unless we free up the housing markets and let people build and buy the homes they want to build and buy, conditions in the urban core will only get worse. Instead of planning our way back into the 19th century, we should build into the 21st.

Pacific Legal Foundation Article April 30, 2020 I By JAMES BURLING

Supreme Court Deals Unanimous, Welcome Blow to Administrative State in Frog Case

Unanimity is elusive in today’s America but the Supreme Court achieved it last week. Although the dusky gopher frog is endangered, so are property rights and accountable governance. Both would have been further jeopardized if the frog’s partisans in the U.S. Fish and Wildlife Service (FWS) had gotten away with designating 1,544 privately owned Louisiana acres as a “critical habitat” for the three-inch amphibian, which currently lives only in Mississippi and could not live in the Louisiana acres as they are now. The eight justices (the case was argued before Brett Kavanaugh joined the court) rejected both the government’s justification for its designation, and the government’s argument that its action should have received judicial deference, not judicial review.

The Consequences Of Land Ownership

“If a man owns a little property, that property is him.…it is part of him….in some ways he’s bigger because he owns it.” 
                                                              —John Steinbeck, The Grapes of Wrath

Property rights are the most fundamental institution in any economy and society. They determine who makes decisions about valuable resources and who captures the economic gains from those decisions; they mold the distribution of income, wealth, and political influence; they set time horizons and investment incentives; and they define who will take part in markets. These attributes are well recognized among economists for spurring economic growth.

But economists have missed another equally important characteristic of private property rights that has long been emphasized in philosophical, legal, and historical literatures and is captured in the quote from John Steinbeck above. Individual owners are more confident, self-reliant, and entrepreneurial than non-property owners. Where access to property is widespread, politics are more stable. Owners have a stake in the existing political regime. Moreover, people acquire property through the market and do not mobilize for forced redistribution using the power of the state through revolution and revolt. They expect property rights to be secure and view government regulation with suspicion. The use and trading of property assets is seen as a positive sum game. With broad property ownership and market participation, the state is less important than the market, and the economy in turn is less centralized, more atomistic, market-based, and supportive of entrepreneurship. This description characterizes the United States from its colonial beginnings through the 19^th century and generally on to today.

In contrast, in countries where property ownership is highly skewed and access to ownership open only to elites, non-owners view things differently. Acquisition of property, wealth, and political power can only occur through capture and then enlistment of the state, as occurred in the extreme in 1789 France or 1917 Russia, or is reflected in recurrent political upheaval and redistributions characteristic of Latin America with its many disaffected populations, military revolts, and coups that have occurred since colonial times. This political uncertainty and lack of overall optimism and entrepreneurship has contributed to slower long-term economic growth than a region so rich in natural resources might have otherwise enjoyed. Why has the southern half of the hemisphere had such a different long-term experience than the northern half? Why has there been more ongoing economic growth and political stability in the North than in the South? Differences in the ownership of land is the key.

WSJ Opinion: Westchester Beats Obama

The feds concede that the suburb’s zoning laws aren’t discriminatory.

Westchester County Chief Executive Rob Astorino spent seven years fighting Obama-era Department of Housing and Urban Development accusations that his county’s zoning laws are racist. Now HUD has conceded that the suburban New Yorker was right all along.

In a one-paragraph memo sent to Westchester recently, HUD Regional Director Jay Golden accepted the county’s latest report demonstrating that local zoning laws are race-neutral. Westchester was required to produce this “analysis of impediments” to housing as part of a 2009 legal settlement between Mr. Astorino’s Democratic predecessor, Andrew Spano, and a liberal activist group.

Mr. Astorino called HUD’s memo a “vindication,” and it is—not least because Westchester demonstrated as early as 2010 that the county didn’t have racially exclusionary zoning practices. Westchester’s residents live where they want and can afford to live. Between the 2000 and 2010 censuses (the most recent available), the county’s African-American and Hispanic populations rose 56%.

The Obama Administration had a larger social and political agenda, which was to use federal anti-discrimination law as a battering ram to rewrite local zoning laws. Westchester would be the model for the rest of the country, and as a Republican Mr. Astorino was an ideal foil to portray as a racist and then point to as a precedent to force racial housing quotas on neighborhoods across America.

The Pain and Dubiety of Hirst

The Supreme Court’s erroneous decision in Hirst http://www.courts.wa.gov/opinions/pdf/914753.pdf  has been a lesson in pain demonstrating poor judicial decision making can cause a web of unintended punishments that go far beyond what is possibly the original intent.  Yes, the environmental cartel’s (tribes, futurewise, agencies, and uncaring politicians) dreamed of result of halting growth in rural Washington was acheived.  And those who stand to profit from the improper route of regulatory legislation from the bench will feel no pain. http://proprights.org/blog/stealing-our-water-one-lawsuit-time-hirst-heist-and-our-diminishing-legislature Yet this decision has caused suburban and rural Washingtonians to doubt the integrity and functionality of our system of governance, spurring a close look at how such a result can come about that has been instructive to those paying attention.

Opinion: Yes, Justice Thomas, the doctrine of regulatory takings is originalist

In his dissent in Murr v. Wisconsin, Justice Thomas opined that “[t]he Court, however, has never purported to ground those precedents in the Constitution as it was originally understood.” and “[i]n my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.”

With all due respect to Justice Thomas, and we respect him greatly, this might not be necessary. The often-espoused notion that the doctrine of regulatory takings sprang forth from the head of Justice Holmes in Pennsylvania Coal v. Mahon is wrong. After this idea was put forth by Justice Scalia (of all people) in Lucas v. South Carolina Coastal Council, a number of scholars set out to refute it, on both historical and doctrinal grounds. Rather than repeat these arguments at length, what follows is a partial list of some of the better scholarly arguments, pro and con, on the subject.

Opinion: Hirst Legislation Inaction

“Morally repugnant”? No, it’s simply what rural families need

The court’s decision has left some families stuck. They’re unable to build on property that they bought before the decision, when new homes had the green light. That’s a big hit to rural economies. The Spokesman-Review noted, “People who purchased property under the old rules now face the prospect of not being able to build on it. Plummeting property values would also impact builders, lenders and county tax collections.”

WSJ Opinion on Regulatory Taking

A Taking by Any Other Name

The Supreme Court extends its bad record on property rights.

The Supreme Court has made some large missteps on property rights in recent years (see Kelo v. City of New London) and on Friday it did it again. The Justices ruled 5-3 that adjacent parcels of land can be counted as a single piece of property, without any compensation to the owner for the change. Count that as a missed opportunity for the Court to brush back burdensome regulations that often amount to unconstitutional takings.

Under the Takings Clause of the Fifth Amendment, property may not be taken by the government for public use without just compensation. In the 1990s four Murr siblings inherited two pieces of adjacent property that their parents had purchased in the 1960s. Ten years later, when the children sought to sell one of the lots, the sale was blocked by a 1975 zoning ordinance that counted the two properties as a single parcel.

The pieces of land had been deeded and taxed separately, but that didn’t sway the majority, written by Anthony Kennedy and joined by the four liberal justices. “The governmental action was a reasonable land-use regulation,” Justice Kennedy wrote, “enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land.” (Murr v. Wisconsin)

The right to sell a piece of property seems fundamental, but the Court offered an exhausting list of considerations that state courts may consider while deciding whether a landowner should expect two adjacent properties to be treated separately or together. Among those, Justice Kennedy offered, are “the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land.” Oh, and also the “background customs and the whole of our legal tradition.” That really clears things up.

Citizens Guide to Kitsap County Critical Area Ordinance Revision

The original Critical Area Ordinance was adopted by Kitsap County in 2005. Let’s look at what we have learned since then

CAO Facts

The sole purpose of the CAO must be protect and preserve those areas critical to the existence of wildlife and human habitation in Kitsap County. If that is the case then the following facts are pertinent to the ongoing discussion.

1. No Baseline. There has never been a “baseline” of existing conditions established for “critical areas” in Kitsap County to support determination of effectiveness of the controls established in 2005. This is essential if restrictions like “no net loss” are to be imposed by the CAO.
2. No Monitoring. There has been no monitoring or ongoing analysis of identified critical areas to determine if the controls established in 2005 are effective or not.
3. No Resident Species. Based on the DOE listings there are no terrestrial species resident in Kitsap County that are threatened or endangered or for which special controls must be established. Based on a NOAA study released in 2005 there are no streams or creeks in eastern Kitsap that are the indigenous (natural) home for threatened or endangered salmonid species. The revised CAO does not identify any species of interest in Kitsap County.
4. 4. No Inventory. Kitsap County does not have a reasonable inventory of areas that might be considered “critical” under the 2005 ordinance or this revision. The County has no clear understanding of the actual areas they are designating as “critical” and thus no ability to determine the actual impact of the Ordinance.
5. Limited Application. The controls on “critical areas’ are imposed only if a building permit application is submitted. All other similar areas in the County are not controlled.
6. Disproportionate Cost. The cost of implementing the CAO falls to the individual property owner/developer because they are required to effectively prove that no critical areas exist on the land they wish to develop. While the property owner tries to prove a negative the County has the final decision and is not bound by the various studies and plans they require.
7. Ignored Legal Precedents and Findings. GMHB finding and various court cases have been ignored. Consideration and inclusion of those finding would significantly reduce the scope and impact of the CAO. Without inclusion of those findings, individual property owners will be required to undertake litigation on matters already determined.
   1. Nollan v. California /Coastal Commission (1987)and Dolan v. City of Tigard (1994): US Supreme Court There must be a direct relationship (nexus and rough proportionality) between the environmental assault and the regulation.
   2. Swinomish Indian Tribal Community s. Western Washington Growth Management Hearings Board (2007):  Benchmarks are required, naming species and specific locations where they exist that the county is trying to protect.
   3. McCready v. City of Seattle (1994), Washington Supreme Court right of entry requires warrant
   4. D. Lucas v. South Carolina Coastal Commission (1992), US Supreme Court: prohibits takings via regulation that disallow construction enjoyed by surrounding properties. (Throughout the county, pre-existing homes are built in what are now considered “buffers”.)
   5. E. S. Army Corps of Engineers v. Hawkes Co. et.al. (2016) US Supreme Court precludes off-site compensatory mitigation requirement and Hearing Examiner is precluded from making the “final decision”
   6. Koontz v. St. Johns River Water Management District (2013)US Supreme Court: precludes off-site mitigation and “mitigation banks” (mitigation funds) and buffer averaging, all of which are found in the CAO.  Buffer averaging also violates both Nolan and Dolan.

8. Denied Public Process. The revision to the CAO was undertaken without actual participation of the public and specifically property owners who would be most impacted by the ordinance. Although numerous inputs have been made by citizens to the March 7 draft revision, there has been no further update draft available for public review. Most of the public comments have been either ignored or determined to be of no consequence by DCD without discussion or debate. Because DCD is delegated the authority to implement and enforce the Ordinance, they should not be the sole arbiter of content or scope.

These are the Facts – Now it is up to you to decide if you want this as your law