America Always Rises

This article is reprinted, with permission, from Sword & Scales, a publication of the Pacific Legal Foundation.

It’s hard to imagine what life was like back in January. I was planning a spring full of travel for work, and then a summer vacation in Italy. But that was a very different world than the one we live in now.

This year will go down as a hugely challenging one for our nation and the rest of the world. We’re enduring the COVID-19 pandemic, America started a national conversation on race and equality, and we’re right in the middle of a contentious election cycle. This year has been gut-wrenching at times and it will undoubtedly shape our lives for years to come.

First, the actions taken by private individuals, associations, and businesses have helped Americans survive the pandemic and will set the stage for recovery. Second, while governments have mostly mishandled the coronavirus response, they have made some good policy and legal changes. And finally, the events of 2020 have exposed—and hopefully accelerated—change for many inefficient, ineffective, and backward laws that have been ruining lives for years.

The private sector mounted an incredible response as COVID-19 was emerging in the United States. Businesses innovated and did things differently to meet their customers’ changing needs. For example, manufacturing companies like Ford, 3M, and General Electric converted their manufacturing facilities to producing medical equipment like face masks and ventilators. Breweries and distilleries began making hand sanitizer. Amazon, Instacart, and Walmart scaled up hiring to meet increased demand for groceries and goods delivered by mail and carrier service. Entertainment venues have pivoted to online movie, play, and opera releases. Comedians have experimented with socially distanced drive-in and outdoor stand up shows. And, city dwellers who were previously required to work from an office are now experimenting with working remote from more rural locations or back home with their families

In contrast, from regulations that prohibited the development of COVID-19 tests, to contradictory advice on the appropriate safety protocols, governments at all levels mostly bungled the responses to the pandemic. But governments got a few things right when they took the opportunity to get out of the way of people trying to help.

Take Certificate of Need (CON) laws, which force businesses in some industries—especially medical—to get permission from their competition to open or expand their services, like ambulances or MRI machines. They make little sense in normal times but are positively absurd during a pandemic. Fortunately, there has been positive change. Indiana and Washington suspended limits on nursing homes. Six states lifted their limits on the number of allowed hospital beds. And 22 states have temporarily suspended their CON laws for ambulances. PLF had sent letters encouraging the ambulance liberalizations, and we will fight to make those suspensions permanent after the emergency has passed.

Occupational licensing is a similar situation. Politicians pass these laws claiming to protect public safety, but occupational licenses mostly just limit entry and competition in the professions they regulate. Unions and interest groups make these rules hard to change, but like Certificate of Need laws, COVID-19 exposed the absurdity of many of these restrictions. For instance, many states have relaxed rules that prohibit medical professionals licensed in one state to practice in another. Many states have also suspended “scope of practice” laws, which limit what tasks doctors, nurses, and other professionals may do under their license.

The pandemic has also highlighted how some state governments abused their emergency powers with arbitrary or overreaching policies. For example, PLF successfully challenged arbitrary re-opening orders in Napa Valley, California that allowed some retail shops (like antique and clothing stores) to open while forcing others (like retail art galleries) to remain closed. The unfairness was so obvious that Napa County backed down without a fight.

People are also realizing that governors shouldn’t have unlimited, autocratic power. Our democratic, constitutional system of government gives power to make laws to the legislature. Most measures to combat the virus should be created in the right way, by the people’s representatives.

If this list of bright spots feels thin, maybe it is. 2020 has brought more bad than good, and I don’t want to be Pollyannaish about such hard times. But it’s important to stop for a moment and reflect on the good things. Our recovery will be made now, by the reforms we make to our government, and by the innovation of individuals and businesses. Crises produce change both good and bad. As Americans, we have been through worse crises before, and we will recover from 2020. 

Scott Barton is senior director of communications and outreach at Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.