December 20, 2017

Can government regulate your subconscious?

By Ethan W. Blevins Attorney
Would you like a bureaucrat tinkering inside here?

If government can strip you of choice just because unconscious bias might influence that choice, its power would have no bounds. But that is precisely what Seattle is doing to its landlords. In Yim v. City of Seattle, PLF is challenging an anti-discrimination law that prohibits landlords from choosing their own tenants. Today, we filed our opening brief to ask the Court to invalidate this oppressive and brazen violation of fundamental rights.

Under Seattle’s “first-in-time” rule, a landlord must offer a rental unit to the first person who submits an adequate application. This goes far beyond preventing intentional discrimination by banning choice across the board. No discretion, no chance to sift among potential tenants, no right to make a basic judgment call about who you want on your property for years to come. If the first person to apply is rude on the phone, too bad—you have to rent to them. If you notice a swastika tattooed on an applicant’s shoulder when he visits the unit, too bad—if he applied first, he gets the house. If someone who applied second, though, makes a good impression and needs a break, too bad—you have to reject them.

Seattle doesn’t seem to believe that choice is worth preserving so long as people make imperfect decisions. The City is glad to gut the many innocent and virtuous reasons for selecting a tenant in order to strike at unconscious biases that may or may not be subtly influencing any given landlord. Your subconscious might manipulate you, so to save you and others from your own flaws, the City just makes important decisions for you.

The City is waging its war against this subliminal bogeyman in a narrow context against an often demonized group, but its logic could extend to any facet of life where implicit bias might influence us. In other words, every facet of life.

The fact that unconscious bias exists is not a good enough reason to just exterminate choice. For example, there is evidence that unconscious bias affects hiring decisions. So could your government force you to hire the first person who applies for a position, so long as they meet the basic qualifications? Could they forbid a personal interview because it would reveal someone’s ethnicity and therefore create a risk that your subconscious might discriminate? What about other settings, like healthcare? Some evidence indicates that Asian Americans are more likely to contract cancer than other groups, yet doctors are less likely to recommend cancer screening for Asian-American patients. So can Seattle require doctors to make medical decisions based on standardized, uniform criteria rather than individualized care? If government can ban individual judgment just because that judgment might be faulty, then we’ve abandoned the basic premise of limited government.

Seattle’s boundless view of its own power cannot stand. After all, if the City is correct that people are so faulty and broken that they should not be making basic judgment calls, doesn’t that criticism apply to the bureaucrats bent on controlling us for our own good? As Frederic Bastiat remarked long ago, “Since the natural tendencies of mankind are so bad that it is not safe to allow them liberty, how comes it to pass that the tendencies of organizers are always good?” I look forward to Seattle’s answer to this question.

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Yim v. City of Seattle

Convinced that all Seattle landlords harbor racist tendencies deep in their subconscious minds, the city passed a law forbidding them from choosing their own tenants. The new first-in-time law requires landlords to rent to the first financially-qualified tenant who applies. PLF represents landlords of small rental properties in the city who rely in part on their experience and discretion in discerning with whom they want to share their homes. They are suing because the city’s law deprives them of the constitutionally-guaranteed choice to decide who to allow on their private property, and who to exclude.

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