Notes on the state of things

Notes on the state of things

Sound public policy has taken a beating during the coronavirus pandemic. And though well-worn over the past seven months, the phrase “arbitrary and capricious” remains most apropos to characterize many governments’ actions.

The latest example comes from the Pennsylvania Liquor Control Board (PLCB). While perhaps well-meaning, its decision to waive alcohol licensing fees for restaurateurs, hoteliers, clubs, catering clubs and retail dispensers for all of 2021 raises serious public policy questions.

The first, and most obvious, is the paucity of the “help” that the too-little, too-late move will offer.  For the annual amount saved is paltry compared to the losses such business have suffered by, first, government-ordered closures and, second, continuing restrictions that have made attempting to keep those businesses open a fool’s errand.

“It’s a drop in the bucket” compared to the hundreds of thousands of dollars lost because of the continuing inane restrictions on eateries, one Pittsburgh bar/restaurant owner told the Tribune-Review.

But as bad as that is, there’s a worse consequence of this ruling, reminds Mike Negra, the lone dissenting vote in the PLCB’s 2-1 ruling.

He says the agency does not have “the authority to waive statutorily established fee,” a position many others share.

“The fee waiver is the equivalent of the PLCB legislating, rather than administering current law,” Negra says.

And that raises reasonable questions about what other administrators have been free-lancing the law since March, exercising power not legislatively granted and, perhaps in some cases, devolving into the exercise of plenary power neither never imagined nor ever intended.

But not all dubious public policy pronouncements in this coronavirus era have used or needed the pandemic for cover. Take, for instance, the recent dissent of state Supreme Court Justice David Wecht in Ladd v. Real Estate Commission of the Commonwealth of Pennsylvania.

In a nutshell, “The State” wielded its regulatory cudgel against a woman, as the owner of two Pocono Mountains vacation properties, who began renting them to supplement her income after being laid off from her job. (This happened a decade ago.)

In short order, neighbors, impressed by her success, asked her to manage the short-term rentals of their vacation properties.

But “The State” notified her that she had been reported for the “unlicensed practice of real estate.”

The court sided with the woman and her right to conduct business in such a limited fashion. But wrote Wecht in dissent:

“I cannot endorse a constitutional standard that encourages courts to second-guess the wisdom, need, or appropriateness” of duly enacted economic regulations.

But, and succinctly put, “The State” was violating the woman’s economic liberty as protected by the 14th Amendment.

It was a macro assertion to which Wecht took major umbrage and even went so far as to claim that “economic liberty” had no historical lineage to the Constitution.

But scholar and senior Reason magazine editor Damon Root takes umbrage with Wecht’s contention in the publication’s November issue:

“Wecht should read more history, starting with the speeches of the late Rep. John Bingham (R–Ohio). In 1866, Bingham served as the principal author of Section 1 of the 14th Amendment, which, among other things, forbids states from passing or enforcing laws which violate the privileges or immunities of citizens.

“As Bingham told the House of Representatives, ‘the provisions of the Constitution guaranteeing rights, privileges, and immunities’ include ‘the constitutional liberty … to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellow men, and to be secure in the enjoyment of the fruits of your toil.’”

Root further notes how that view was widely shared by those who framed and ratified the 14th Amendment and that “even those who opposed the amendment’s passage did so because they knew it was designed to protect economic liberty from overreaching state regulation.”

“Contrary to Wecht’s flawed assertion, economic liberty most certainly does have something to do with the text and history of the Constitution,” Root concluded.

How chilling to think of Wecht’s dissenting view as the majority view and what frightening public policies might be spawned.

Colin McNickle is communications and marketing director at the Allegheny Institute for Public Policy (cmcnickle@alleghenyinstitute.org).