Horses in the Dining Room?

May 17, 2012

Should a restaurant be required to allow horses in the dining room? Incredulously, a recent Justice Department ruling now says yes. In response, last week I proposed an amendment to the Commerce, Science, and Justice appropriations bill that would repeal this ridiculous mandate. Having passed the House, the proposal now awaits the Senate's unlikely approval.

Despite the difficulty (some would say impossibility) of housebreaking a horse, the Obama Justice Department ruled that "service" horses -- miniature horses used to accompany people with disabilities -- are no different than guide dogs under the Americans with Disabilities Act (ADA). As a result, shops, restaurants, hotels and even airlines could be sued if they did not accommodate horses.

That regulation joins a long list of rules with which small businesses must comply. The New York Times recently reported on a particularly insidious scheme in which lawyers recruit disabled people, pay them a fee, and use them to file lawsuits against businesses that fail to comply with any one of hundreds of ADA rules.  For small businesses, the cost of compliance with a law that designates 95 different standards for bathrooms alone is just the beginning. They must also pay attorneys' fees to the litigants in such cases, even though many businesses say they would have complied without a lawsuit.

Some 1.65 million lawsuits are filed each year over enforcement of federal regulations according to Berkeley law professor Sean Farhang, author of The Litigation State. Estimates by the Competitive Enterprise Institute suggest that regulation cost the economy $1.75 trillion in 2008. That's Trillion with a T. If you were to spend $1 million a day every day, it would take you nearly 3,000 years just to get to $1 trillion.

That's a massive drag on the US economy. With an average of nine new rules appearing in the Federal Register every day, small businesses with fewer resources struggle to keep up with an ever-changing regulatory environment. Some 65 percent of the nation's net new jobs are created by small businesses according to the Small Business Administration. Overregulation has direct affect on their ability to create jobs and compete in the marketplace.

In response, the House recently passed the REINS Act, intended to require Congress to hold an up-or-down vote on any regulation deemed to have an economic impact in excess of $100 million. But without approval from the Senate or the President, the bill has yet to become law. This law should be seen as a starting point. Congress must assert more authority in the rulemaking process. More importantly, we must recognize that one size does not fit all. What works in California may not be right for Utah. In many cases, regulatory authority can be returned to the states, where the leaders are closer and more accountable to the people who live with the consequences of their decisions.

While Congress is guilty of passing sweeping regulatory laws with broad and often undefined powers, another problem is the delegation of authority to executive branch agencies with virtually no accountability to the public. With the implementation of massive new regulatory regimes in healthcare and finance, federal bureaucrats are more empowered than ever to weigh down the economy with new rules.

Meanwhile, the federal workforce, many of whom are regulators, has increased. Since January 2009, the Obama Administration has added 144,700 new employees -- a net increase that excludes postal employees, uniform military and census workers. While the private sector has seen employment decrease 4.2 percent since January 2008, federal employment has jumped some 11.6% during that period. The expansion of government and the expansion of federal rules leads to the contraction of economic opportunity and freedom.

If we are serious about creating jobs and growing the economy, we have to reduce the regulatory burden on our most prolific job creators -- small businesses. Government cannot be all things to all people. We don't need a rule or regulation for everything that might possibly go wrong.

If a person wishes to bring a horse into an establishment, the request should be dealt with on a case-by-case basis -- not through a federal mandate. Ironically, even American Miniature Horse Association President Harry Elder does not condone the use of the animals as a replacement for guide dogs. "The American Miniature Horse can be readily trained to be lead or driven," he told Fox News, "but, in most cases, it would not make a suitable replacement for an animal such as a guide dog."

We have to give businesses regulatory certainty, give states more autonomy, and give federal regulators more direction from those who are actually accountable to the American people. The REINS Act is a great start. But it's not enough.

The original op-ed can be read at The Daily Herald.