Licensing and leverage
Author: Timothy Sandefur
A number of people have forwarded me the story from Orange County, Florida, where sheriff’s officers conducted a raid of barber shops, arresting and handcuffing people for barbering without a license. John Stossel rightly notes that this is yet another example of government’s irresponsible expansion. But it’s actually more than that. Licensing laws like these give government officials leverage—power that they can exploit for other purposes. According to one story, the sheriff was really looking for shops that were secretly storing or selling guns and drugs. The licensing thing just gave the police the power to search that they otherwise would not have had. It’s easy to think of business regulations just in terms of economics—the expense and burden on entrepreneurs—and that is a very serious consideration. But such regulations also give government a hammer that it can use for other, possibly perverse reasons. Vague laws like the federal law against “honest services fraud,” or the federal “wire fraud” statute, give government power to blackmail and arm-twist.
And as Judge Janice Roger Brown put it, when she was on the California Supreme Court, “In the pervasively regulatory state, police are authorized to arrest for thousands of petty malum prohibitum ‘crimes’—many too trivial even to be honestly labeled infractions. They are nevertheless public offenses for which a violator may be arrested. Since this indiscriminate power to arrest brings with it a virtually limitless power to search, the result is the inevitable recrudescence of the general warrant.” People v. McKay, 27 Cal. 4th 601, 632-33 (2002) (Brown, J., dissenting).
Update: More here from our friends at IJ.
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