May 17, 2018
Yesterday, Governor Doug Ducey vetoed the Permit Freedom Act, an important new bill approved by overwhelming bipartisan majorities in both houses that would have protected the constitutional rights of Arizonans whenever they’re forced to get licenses or permits. The Act would have ensured three basic procedural protections whenever a person requests a permit of any sort: first, that the criteria for getting the permit be clear and unambiguous; second, that the applicant get a yes or no answer within a specified period of time; third, that the applicant have their day in court if the permit application is wrongly denied.
As explained in our policy report, the U.S. Supreme Court has already said that these requirements are mandatory whenever government requires people to get permits. But state and local governments often disregard them, and impose licensing laws that are vaguely worded (requiring “good cause,” for instance), or contain no deadlines, so that applicants must wait indefinitely for an answer. Applicants are then often forced to appeal a denial through an administrative process, where the rules of evidence and procedure don’t apply, rather than in a real court. Permit Freedom would not have eliminated any existing licensing or permit requirements. It would have simply ensured that the rules of the game are clear and are fairly followed.
Governor Ducey claimed in his veto message that he feared the Act would cause increased litigation. Actually, the opposite is true. Lawsuits are more likely without the Permit Freedom Act, because licensing requirements are so vague that people have to ask judges what they mean. True, the indefinite delays that people are sometimes forced to endure might keep down the number of lawsuits, but that’s only because people are unfairly sent into legal limbo; their rights are violated and then they can’t challenge that. But Permit Freedom would have reduced the number of lawsuits by requiring government officials to say specifically what the law is, and how it will be applied—instead of leaving citizens in the dark, or using ambiguous language to impose unfair burdens on Arizonans, as is now too often the case.
Governor Ducey often says he wants to reduce regulation and the stifling of entrepreneurship that results from meddlesome government bureaucracy. Permit Freedom would have been an essential first step in accomplishing that goal—by ensuring an open, clear, constitutionally mandated process. That’s why Republicans and Democrats overwhelmingly voted yes. By vetoing this bipartisan, common-sense bill, he’s chosen instead to take a dramatic step backward from an agenda of freedom and fair play.
Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.