Category: reason

Last month, Seattle’s city council voted to lift a host of restrictions on many home businesses, thanks to the efforts of one small local cidery and its supporters.

As I detailed in a February column, after one neighbor complained repeatedly to the city about Yonder Bar, the city forced the “bar”—a converted home garage walkup window where consumers may only purchase cider to drink at home, rather than a place where people drink alcohol beverages—to close temporarily.

As I also explained in the column, the city, which had approved and licensed Yonder Bar prior to its opening, claimed, in closing down the bar, that Yonder Bar was operating illegally in a residential area, didn’t have adequate off-street parking, used signage to indicate to consumers that it’s a business—and not, say, an unmarked garage full of old tires or broken croquet mallets—and could operate only by appointment.

That might have been the end of the story. But thousands of Yonder Bar’s neighbors and at least a couple city councilors rallied behind the takeaway-only bar. Those city councilors introduced a bill that would not just allow Yonder to reopen—but also allow other, similar home-based businesses to operate without fear of being shuttered by the city.

City Council members Dan Strauss and Lorena Gonzalez introduced the bill, dubbed Bringing Business Home, in order to “provide additional support and a means towards economic recovery for small businesses adversely affected by current land use codes during the pandemic.”

The bill was intended to lift some of the most onerous home-business requirements, including the appointment-only rule, signage ban, cap on employees, and traffic restrictions.

In my column on Yonder Bar, I cited one local Twitter account that predicted Yonder Bar’s persistent nemesis could end “up getting a citywide zoning change that will legalize stuff like Yonder on every lot.”

That’s largely what happened. Yonder Bar reopened soon after the bill was introduced. And then, rather amazingly, the Bringing Business Home bill passed by an 8-1 vote.

“This bill removes one of the biggest hurdles for small businesses—commercial rent—and gives them the opportunity to follow their dreams,” Yonder Bar owner Caitlin Bramm told me this week. “We started Yonder Bar in our garage, and it allowed us to safely and confidently grow while providing valuable cash flow for our business. We are thrilled to have it back open, and can’t wait to see what opportunities this bill opens up for others.”

“Our land use code cannot be the barrier to vibrant neighborhoods and a strong economy,” Councilmember Strauss said after the bill’s passage. “It’s essential we meet our businesses where they’re at: whether that’s out of their homes or garages.”

Strauss is right. But given that the legislation is only temporary—it’s set to expire in a year—the city council still has work to do to ensure Seattle’s government isn’t a barrier to the success of small food entrepreneurs.

While many small food producers across Washington State face similar restrictions, there’s also a movement currently underway to expand opportunities for home food entrepreneurs throughout the state. A bill to legalize microenterprise home kitchens, which passed in the legislature last month and is now before a key state Senate committee, could turn some home-based cooks “into a legitimate industry, fostering entrepreneurs and lowering the barrier to entry into the food industry.”

The bill’s sponsor, State Rep. Noel Frame, who also hails from Seattle, explained last month that small entrepreneurs “really want to get into the food business but may face pretty big barriers to do so, particularly cost. This is a pathway of opportunity for them that is slightly lower-barrier.”

Frame’s bill could help bring in from the cold underground food sellers such a “C.,” an anonymous seller I contacted (while researching a 2018 column) through Facebook’s Marketplace. I subsequently met C. in a Costco parking lot to buy a few of the delectable tamales her mom cooked to help supplement her income.

Unfortunately, even if Frame’s bill passes, it’s more likely to leave C. and her mom and thousands of other existing and potential home-food entrepreneurs out in the cold than it is to legalize their work.

That’s because, as part of a pilot program detailed in the bill, Washington State’s largest county—King County, which includes Seattle—may issue no more than 30 permits during the law’s first year. Most other counties could offer only 10 such permits. Other restrictions include a cap on the number of meals a seller may offer each day or week. Also, the bill wouldn’t take effect until summer 2022.

These limits have unfortunately become a feature of microenterprise home kitchen laws. California, the first state to adopt such a law, has seen its new policy vacillate between flailing and failing, largely because the state left it up to local governments to opt in to the law.

“While a handful of counties and cities have expressed interest in adopting the law in their own jurisdictions, no California city or county save Riverside County—not one—has adopted the law and drafted rules to implement it,” I explained in a column last year on the California law’s status, dubbing it “nothing more than a cruel illusion.”

Seattle city council members deserve credit for recognizing that laws and regulations often act, as Councilor Strauss noted, as a “barrier to vibrant neighborhoods and a strong economy.” Washington State lawmakers deserve credit, too, for recognizing that home-based culinary entrepreneurs want and deserve a path to legitimacy.

But until and unless Seattle’s home-business law is made permanent, and Washington State’s microenterprise home kitchen bill is strengthened, streamlined, and adopted, Washington State food entrepreneurs will likely remain tangled in red tape.

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4/3/1962: Engel v. Vitale argued.

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Last year, hashtag activists were ready to #AbolishICE, in part over the deaths of about 20 immigrants in custody in 2020. Protesters called on the government to “defund the police” over more than 1,000 killings by law enforcement during the same period. Those deaths are tragic, and many could have been prevented with better policy. But they pale in comparison to the blood on the hands of the Food and Drug Administration (FDA) over the last 12 months.

Faced with the challenge of COVID-19, the FDA screwed up on nearly every level. When the agency did do something right, it was almost always by making exceptions to its normal policies and procedures.

In this month’s cover story, Ronald Bailey describes some specific targeted changes at the FDA and other bureaucracies that could make a huge difference, as well as some crucial moments when the FDA managed—with great effort—to get out of its own way. This incremental approach to reform is both admirable and realistic. To do as Bailey suggests could help ensure that COVID-19 is our last true pandemic.

But sometimes enough is enough. There was a time when Republicans used to offer up lists of government agencies or cabinet departments they would abolish as part of the presidential primary process—say, the Department of Education or the Federal Reserve. The winner never did abolish anything, of course. But after the year we’ve just been through, nothing should be clearer than the need to eliminate an enormous bureaucracy whose documented failures resulted in the preventable deaths of tens of thousands, maybe hundreds of thousands, of people.

The FDA screwed up in prohibiting researchers from testing affected populations in the early days of 2020, when the virus might have been better contained upon arrival in the United States. It screwed up in refusing to lift requirements for mask manufacturers and by declining to allow good substitutes for masks in short supply. It screwed up by collaborating with the Centers for Disease Control and Prevention (CDC) to protect a monopoly on testing tools that ended in a disastrous shortage. FDA staffers tasked with approving both treatments and vaccines screwed up by delaying meetings and taking days off as Americans were dying in unprecedented numbers of a disease for which the agency had potential solutions. At press time, the AstraZeneca vaccine, which was widely available in many other nations, remained unapproved in the U.S., for reasons that are opaque to Americans desperate to resume normal lives.

But this is nothing new. The FDA started screwing up the COVID crisis long before the first bite of bat soup, by suppressing innovation and experimentation that could have better positioned scientists and researchers to prevent the outbreak from becoming a pandemic.

The agency is large, with a 2021 budget of $6 billion and the equivalent of about 18,000 full time staff. But that’s not the real cost of the FDA. Nobelist Milton Friedman got it right when he said: “The FDA has done enormous harm to the health of the American public by greatly increasing the costs of pharmaceutical research, thereby reducing the supply of new and effective drugs, and by delaying the approval of such drugs as survive the tortuous FDA process.”

The FDA is being asked to do an impossible, immoral task—and it is doing it badly. Ordinarily, people tend to discover this one at a time, in moments of personal crisis. A patient with a rare cancer is heartbroken to find out a potential treatment is not approved for use in the United States. A pharmacist who would like to offer a customer suffering from side effects an alternate drug is unable to do so. An entrepreneur who has an idea for a new testing tool gets discouraged when she looks into the approvals she would have to obtain before going to market. People seeking to make decisions about their own bodies that would harm no one else are forbidden from doing so, sometimes literally condemning them to death.

This year, Americans experienced that despair and frustration in unison. As our friends and neighbors sickened and died, the FDA equivocated, procrastinated, and played hot potato with tough decisions, just as it has done with minimal consequences to the agency for decades.

The FDA distorts incentives for pharmaceutical companies in ways that can be hard to see because they have been in place for so long. Much as middle schoolers suffer when their instructor “teaches to the test” at the expense of holistic understanding, customers and patients suffer when drug makers focus on jumping through the FDA’s hoops rather than figuring out the best uses for new compounds or the best way to help their customers.

Even now, with three COVID vaccines approved and on the U.S. market, health professionals are unable to pivot to offering a single dose to twice as many people, despite clear evidence that one shot can be highly effective. Why? Because the FDA approval process is not built to handle that kind of change mid-stride. And methods that would have allowed researchers to formally evaluate the efficacy of a single shot were also not allowed pre-release.

The current system is this: The FDA approves new pharmaceuticals as both safe and effective, in most cases after a laborious and expensive process of many years and many millions of dollars. Pharmaceuticals are only approved for certain uses, but physicians are allowed to use them off-label, which immediately undermines the case for the time-consuming efficacy part of the approval. Sometimes, even though drugs have been approved as safe, they are discovered to be harmful after the fact and have to be withdrawn.

When a disease is a really big deal, as with AIDS or COVID-19, the FDA makes exceptions—especially if political pressure comes to bear. The agency grants emergency use authorizations or convenes special committees. When there’s a sob story, a patient is occasionally allowed the “right to try” a treatment earlier than usual. While more exceptions made more often would be an improvement on the status quo, the need for these exceptions and the extremely high stakes for obtaining them shows that there is something deeply wrong with the underlying process.

Whenever a government agency fails in its mission, there are calls for more funding, more authority, more high-quality leadership. But in this case, there is little reason to believe those things will help; the agency’s mission was flawed from the beginning.

In its 115 years of existence, the FDA has certainly nabbed quacks and prevented harmful drugs from coming to market. The agency has been dining out for decades on the story of how it refused to approve thalidomide for sale in the United States, for instance. With all due respect to that incredible catch, this is like NASA boasting about Tang and Velcro. It’s not that the FDA has never done anything good; it’s that it hasn’t done enough to justify the costs.

Sometimes the costs are clear, as they have been this year in the struggle to get access to vaccines and treatments, or as they have been to the sufferers of chronic or terminal illnesses for much longer. Other times the stakes are low for any individual patient but add up. Thousands, maybe millions, of men with heart trouble take a low dose of aspirin every day to reduce the risk of myocardial occlusion. But for many years after that connection was established, the FDA prohibited aspirin manufacturers from advertising it. That single, seemingly minor restriction contributed to the deaths of many, many thousands of Americans.

Alternatives to regulation can also be hard to envision. But the role of the state, if it has one at all, is to protect rights and guard against fraud, not to prevent people from making risky choices. There are many nonstate mechanisms to ensure a safe and effective drug supply. The courts have a role to play here, one that was stunted when the FDA usurped their function in determining where harm or fraud has occurred. Technology to review consumer products is more robust and easier to use than ever, and there are plenty of other industries where private institutions verify and communicate with the public effectively about quality and safety. Without government-granted monopolies and barriers to entry, drugs would proliferate and prices would almost certainly fall, resolving many issues of access.

At the time of this writing, COVID case counts and deaths were finally falling. But there are still 2,000 Americans dying each day. Not every one of these deaths can be laid at the agency’s door, but each day of delay is one more argument for abolishing the FDA.

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On Thursday, April 1, the Ninth Circuit upheld California’s restrictions on indoor gathering in Tandon v. Newsom. Over the next 24 hours, the Bible Worship group frantically prepared an emergency injunction application to the Supreme Court. On Friday around 6:00 ET, the group filed that application with the Supreme Court. About two hours later, California changed the gathering guidance, effective April 15. This never-ending game of whac-a-mole is such an abject waste of everyone’s time.

Does anyone believe this timing is coincidental? The government is, once again, trying to frustrate Supreme Court review. And of course, this change goes into effect after Easter.

Thanks to the PDF’s metadata, I can pinpoint the exact minute when the guidance was changed. The document was created at 4:20 PM (PT), and was finalized at 4:56 PM (PT). Once again, the application was filed around 3:00 PM (PT). This change wasn’t planned in advance. The government released this policy after the 9th Circuit ruled, and in response to the imminent stay application.

What happens next? Circuit Justice Kagan has not yet requested a response. I hope she doesn’t set the due date after April 15. Giving the state two weeks would potentially moot the case. (Though I think voluntary cessation keeps it alive.) Kagan previously gave California 7 days in Gateway City Church. That number should be maintained. If Kagan gives California till Friday, April 9, to respond, the plaintiffs can file a response by Saturday. A decision on Sunday, April 11, would allow the group to worship on their Sabbath. That relief would be meaningful. And, the Court could rule well before the April 15 changeover. Of course, we saw the Court was willing to sit on the Kentucky petition in order to moot it. And we know that the Chief does not believe in the concept of voluntary cessation. The five-member majority from Roman Catholic Diocese needs to be proactive here. Issue the ruling as soon as possible. If the dissent is not yet ready, say the dissent will come later. Don’t let the Court’s coward caucus wiggle out of deciding this blatant violation of the First Amendment.

Going forward, there has to be some form of sanctions for government officials who consistently try to frustrate Supreme Court review. Discovery could determine what factors went into changing the policy. I’m sure Rhys Williams, the Senior Advisor on Emergency Preparedness and Management who created this document, would be happy to answer some interrogatories about how and when the government decided to modify this document in response to the stay application.

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Yesterday, I blogged about the 9th Circuit’s decision in Tandon v. Newsom. This decision upheld California’s complete prohibition of bible worship in private homes. I’ll admit, the panel’s decision irked me. Now, I often read a judicial decision that I disagree with, but that does not make me angry. This decision made me angry. Why? Because it will waste everyone’s time. This decision would require the worshipers’ counsel to scramble an emergency application to the Supreme Court. And the California Attorney General will have to reply. The Justices will have to struggle over yet another COVID case. And one month later, at least five Justices will enjoin the policy. Or California will withdraw it at the last moment, in a game of whac-a-mole. By now, the process is old habit.

Since Justice Barrett’s confirmation, four emergency application has gone against the government. At this point, the 9th Circuit should be able to discern the Court’s approach. Instead, the Ninth Circuit acted as if the Chief’s South Bay I decision was still the controlling precedent, and used the incorrect comparator. For these reasons, I did not find it a good use of my time to even describe the decision.

Now, the Plaintiffs have filed an emergency application with the Supreme Court. And we can play the game all over again. Here is an excerpt from the brief:

This Court has issued four orders in just the past five months unequivocally holding that governments may not restrict the free exercise of religion—even in the name of fighting a pandemic—if comparable nonreligious activities are not subject to the same restrictions. Yet California—assisted by the Ninth Circuit, which has “disregard[ed] the lessons from [this] Court” and “turned a blind eye to discrimination against religious practice”—continues its rearguard action against the free (and safe) practice of religious faith. App. 32 (Bumatay, J., dissenting). Because of the State’s recalcitrance and the Ninth Circuit’s refusal to follow this Court’s “clear and, by now, redundant” precedents, this Court’s intervention is, unfortunately, once again necessary. App. 36 (Bumatay, J. dissenting). . . .

Under these rules, Pastor Wong and Karen Busch can sit for a haircut with 10 other people in a barbershop, eat in a half-full restaurant (with members of 20 different families), or ride with 15 other people on a city bus, but they cannot host three people from different households for a Bible study indoors or in their backyards. The State thus treats religious exercise far more harshly than secular activities. Notwithstanding the State’s clear discrimination against religious exercise, the Ninth Circuit applied rational basis to the Gatherings Guidance and denied Applicants’ request for an injunction pending appeal. App. 27. The Court reached that head-scratching result based on its conclusion that “in-home secular and religious gatherings are treated the same.” App. 27. But the State’s decision also to disfavor some nonreligious activity—such as in-home birthday parties or Super Bowl gatherings—does not save the State’s Gatherings Guidance from strict scrutiny, as this Court has explained, repeatedly, in Diocese of Brooklyn, South Bay II, Harvest Rock, and Gateway City Church. Instead, “regulations must place religious activities on par with the most favored class of comparable secular activities, or face strict scrutiny” App. 36 (Bumatay, J., dissenting) (citing Diocese of Brooklyn, 141 S. Ct. at 66–67). And none of those precedents suggests that the Free Exercise Clause applies only to formally established “houses of worship,” or that businesses and government services are not proper comparators to private homes with respect to the risk of infection, as the panel majority concluded. On the contrary, this “Court’s prior decisions ‘clearly dictated’ enjoining the restrictions,” but the Ninth Circuit “again fail[ed] to apply [those] precedents”—”[a]t this point, a tale as old as time.” App. 36 (Bumatay, J., dissenting).

In Gateway City Church v. Newsom, the Court said the outcome was “clearly dictated” by South Bay II. I expect a similar reversal.

Still, I think this case is both easy and hard. If people from different households are allowed to assemble to watch a movie in a theater, they should be allowed to pray together in a single house. This policy reflects the state’s utter unconcern for the Free Exercise of religion. No single faith is targeted. Rather, the state ranks religion at the bottom of its priority list, along with other insignificant commercial enterprises. Movies are important. Bible worship is not. The tougher part is singing. In South Bay II, Justice Barrett drew along Justice Kavanaugh to place the burden on the challengers to demonstrate that the government was acting unreasonably. I much preferred Justice Alito’s framework, which put the burden on the state to support their policy. Generally, with the violation of an enumerated right, the government bears the burden, and not the challenger. I’m still flummoxed that ACB made this opinion her first writing as a Supreme Court justice. Perhaps now we will have more clarity on the singing issue.

I am finalizing my article on the Free Exercise Clause and the pandemic. It should be published in the Harvard Journal of Law & Public Policy in the next two months or so. I don’t know if I will have the time to incorporate yet another COVID case.

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