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Unfair Advantages: How Licenses & Waivers Threaten The Rule of Law

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When laws are clearly written and widely understood, people can easily determine whether their actions are lawful or not. However, Congress has been threatening the rule of law through the use of waivers – that allow individual to act contrary to the rules – and through the use of licenses that require individuals to get permission before working. In order to revitalize the rule of law, Congress should return to passing clearly written laws that neither allow some to ignore the rules nor require permission to act in the first place.

Discussion Questions

  1. Why is the rule of law valuable? 
  2. How can Congress revitalize the rule of law?

Additional Resources

  • Read “The Legal Origins of American Exceptionalism” by Michael McConnell. Available here.
  • Listen as Michael McConnell discusses “The Legal Origins of American Exceptionalism,” available here.
View Transcript

When laws are clearly written and widely understood, people can easily determine that their actions are lawful. 

But recently, Congress has been threatening the rule of law by writing more complicated legislation, shifting the balance of power toward regulators at federal agencies who fill in gaps left by Congress. 

Which results in case-by-case determinations. 

So instead of referencing clearly written laws that tell you what you can do, regulated parties have to go to an agency and ask permission before acting. 

This has led to an increased use of licenses. 

which act as natural road block to economic development and holds up many productive behaviors. 

It’s also led to an increased use of waivers, which grant permission to do something different than what the rules require. 

For example, in the first couple years of the ACA, there were 1,231 waivers issued. 

Many waivers went to politically connected large corporations and labor unions. Others who asked for them were denied. 

Instead of engaging in economically productive behaviors like investments and hiring, businesses respond by putting money towards winning political favors 

Congress can revitalize the rule of law if it returns to passing clearly written laws that are widely understood.