By Russell Withers, General Counsel & Senior Policy Analyst. Mar. 18, 2020
The collective mood in Texas, the nation, and the world is one of unease and uncertainty. It is difficult to gauge the historical significance of a moment as it happens in real time, but this feels important, no matter how it all plays out. Things changed so quickly. At TCCRI, we were ramping up to weigh in on almost every interim charge in the legislature. Most of them have already been discussed internally and many of them have been drafted and/or outlined for testimony. February and the first half of March felt like business as usual, and TCCRI submitted testimony on key topics, including the Second Amendment, Criminal Justice, Human Trafficking, Disaster Relief, Investment of State Funds, Veteran Treatment Courts, Veteran Health Care, and Pension Plans and Personal Retirement Savings.
Committee hearings have been postponed for the foreseeable future, as has our major event for the year, the 2020 TCCRI Policy Forum. But the show must go on. TCCRI will reschedule the Policy Forum. Committee hearings in the Texas Legislature will resume eventually. And important public policy issues are always swirling.
For the purposes of this LIFT Perspectives post, I would like to observe the suspension of laws that almost always occurs when a disaster is declared. Under Section 418.016 of the Government Code:
The governor may suspend the provisions of any regulatory statute prescribing the procedures for conduct of state business or the orders or rules of a state agency if strict compliance with the provisions, orders, or rules would in any way prevent, hinder, or delay necessary action in coping with a disaster.
Governor Abbott has done an excellent job leading our state-level response, and Section 418.016 is a tool that he uses effectively. With the waiver of trucking regulations, supply chains have an easier time getting important goods to their destinations. With the waiver of key doctor and nurse licensing regulations, such as Texas licenses for professionals already licensed in other states, the supply of medical care is increased in anticipation of increased demand.
There are lessons to be learned from these waivers, and it is worth quoting TCCRI's 2019 Free Enterprise, Energy, & Infrastructure Task Force Report with respect to occupational licensing waivers granted during the response to Hurricane Harvey:
Governor Abbott has used this authority extensively, with hundreds of statutes and rules still in suspension. Many of these relate to occupational licensing. Waivers include suspension of just about every registration, renewal, and continuing education requirement for health professionals, suspension of all necessary statutes and rules prohibiting health care professionals licensed out-of-state from practicing in Texas, and suspension of a host of licensing requirements for professions like plumbers, peace officers, psychologists, private security personnel, continuing education requirements of all licenses under TDLR’s purview within the affected counties, and many others.
The number of licensing suspensions for Harvey are so numerous and the term of the suspensions, and waivers so long, that there should be a study done on which license requirements were suspended or waived and what the impact was. The benefits likely far outweigh the negatives. Moreover, the decision to remove these barriers across the board in an effort to aid hurricane recovery indicates that supply limitation is a crucial element of occupational licensing. The fact that Texas needed these workers and was willing to lift the licensing requirements in order to increase that supply should be Exhibit A in terms of evidence that these licenses are not crucial in terms of the health and safety arguments presented in order to justify them in the first place.
Indeed. When proposals for new occupational licenses are made, or opposition to the repeal of existing licenses surfaces, health and safety are always the arguments presented in their defense. And yet, despite their crucial importance with respect to health and safety, they are lifted immediately when people are in their greatest time of need, and when they are most vulnerable. When the current public health crisis ends, the Texas Legislature should take a good look at every law and regulation suspended during the disaster declaration and ask whether each of those is necessary in the first place. It is likely that our economy will need a jump-start, and one place to start will be with laws and regulations that have more to do with protecting certain industries and professions than they do with protecting public health and safety.
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