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Opening Opportunities and Fighting Abuse — IJ’s Response to the COVID-19 Crisis

In an effort to help individuals and small businesses fight the COVID-19 pandemic and survive the economic crisis, the Institute for Justice has brought to bear its expertise to challenge unnecessary regulations hampering individuals’ ability to work to improve the situation. At the same time, IJ is also addressing the broader systemic problems that have made matters worse.

IJ’s experts are hard at work to respond to the COVID-19 crisis.See All of IJ’s COVID-19 Projects

For decades, IJ has recognized that barriers to economic liberty severely hinder entrepreneurship and business creativity. We litigate cases challenging those laws and educate the public about the harmful effects of occupational licensing and other barriers. But it is in this time of crisis that the dire effects of these systemic barriers can really be felt.

Some cities and states are beginning to recognize the problems caused by overregulation and are using their emergency powers to eliminate red tape and other restrictions that hamstring businesses’ ability to respond to this moment.

And yet many problems remain.

For instance, although some states have relaxed regulations limiting what nurse practitioners and other health care providers can do, many other states have failed to act. And while some cities have allowed restaurants and other businesses to adapt their business models to operate without risking public health, others have refused to allow such adaptation, even when these businesses would serve essential needs.

At the same time, the crisis has underscored how shortsighted protectionist policies undermine the medical community’s ability to help. For instance, certificate of need laws have limited the number of available hospital beds, as well as the ability of medical providers to offer services outside of hospitals. Similarly, limitations on telemedicine, home tests and other services have meant Americans are forced to travel to doctors’ offices or emergency rooms when a video call or home test could resolve an issue.

As the crisis unfolds, IJ will also assist small businesses as they struggle to survive in the current environment while also keeping watch for government overreach. In fact, we have already taken on a number of projects. Watch this page as our work in this area grows.

What We’re Doing

Litigating to Create Sustained Change
For years, IJ has filed lawsuits on behalf of small entrepreneurs to break down protectionist barriers and on behalf of medical providers to expand access through innovations like telemedicine and outpatient non-hospital services.

That work continues and is more urgent than ever.

The nation’s ability to respond to the COVID-19 crisis has been hamstrung by protectionist laws that limit the number of available hospital beds in some communities and more generally hamper innovation and other opportunities in the medical marketplace. Elsewhere, laws prohibiting certain charitable acts make it nearly impossible for neighbors to help one another in a time of need.

Some of those laws have been temporarily repealed, while many others remain. IJ has filed (see below) a number of lawsuits aimed at putting an end to these laws so that we’re better prepared to provide critical health care and other support now and in the future.

Cutting Red Tape
IJ experts are working with entrepreneurs and others in the private sector to help them navigate red tape that stands in the way of providing aid during this time. When barriers to helping people prove insurmountable, IJ’s attorneys are directly engaging with regulators and advocating that they waive or eliminate laws that needlessly hinder individuals’ ability to help one another. For instance, IJ has urged state medical boards to allow nurse practitioners to work in hospitals without physician supervision.

Supporting Small Businesses
IJ’s legal clinic at the University of Chicago and its activism team have leveraged their relationships with small businesses in Chicagothe District of Columbia and Miami to launch websites promoting local small businesses that are still providing goods and services while complying with shelter-in-place orders.

Beyond providing short-term support, IJ’s experts are working with state and local lawmakers to craft policies to aid individuals and businesses by cutting red tape, licensing, and other regulations that hinder the ability to help now and thrive in the future.

Standing Guard Against Government Overreach
History demonstrates all too well that government power expands in times of crisis and rarely contracts when the crisis abates. Moreover, government’s power, even in times of crisis, is not unlimited. IJ is closely monitoring federal and state responses to the pandemic and looking out for abuses that we would be well positioned to address. And we will bring to bear all of IJ’s tools to ensure that regulators and others do not leverage this crisis to permanently reduce freedoms once this moment has passed. 

Working to Maintain Reform Post-COVID
The COVID-19 crisis has led to deregulation at many levels of government, spotlighting the fact that so many government-imposed barriers and requirements are wholly unnecessary to protect public health and safety. As the crisis recedes, IJ’s team will work to cement in place the many deregulatory efforts that created greater access to medical care and economic opportunity.

Specific Activities

As part of this plan, IJ has already taken on a number of projects to respond to the crisis. Many more are in the works.

  • Fighting for Medical Access
    The Institute for Justice (IJ) partnered with medical professionals in two states to challenge laws that limit medical access and entrepreneurship. The lawsuits, which target certificate of need (CON) laws in Nebraska and North Carolina, challenge the constitutionality of laws that artificially limit doctors, hospitals and other medical professionals’ ability to provide services in excess of governmentally determined “need.” The lawsuits come amidst a nationwide shortage of hospital beds, which has been exacerbated, in part, by state CON laws. In addition to our lawsuits, IJ attorneys have urged governors across the country to waive CON requirements:

  • Helping Neighbors Help One Another
    With local food banks running low, on April 16th IJ partnered with a Washington woman to sue for her right to run a ‘little free pantry’ to help her neighbors in need.
  • Enabling Telemedicine
    Since most people are staying home more, they need access to quality healthcare at home too. Many states have suspended certain laws that limit telehealth services to in-state providers. IJ is writing to states that haven’t taken such actions and encouraging these states to allow residents to seek telehealth services from practitioners licensed anywhere in the U.S. [Read More] The states where we have requested action are:

  • Lifting Medical Scope-of-Practice Restrictions
    IJ attorneys are urging state medical boards to reevaluate scope-of-practice regulations requiring that nurse practitioners be supervised by a physician. This supervision requirement is effectively banning many nurse practitioners from offering their services to overburdened hospitals, even as volunteers. Not only is this requirement hurting the state’s emergency efforts, but it is also completely unnecessary and likely unconstitutional. [Read More]States where we’ve urged reevaluation:

  • Opening Garden Centers in Michigan
    IJ sent a letter to Governor Gretchen Whitmer of Michigan, concerning an executive order she issued, in response to the COVID-19 pandemic, that prevents independent garden centers and nurseries from operating. IJ’s letter details the harms the order causes for these businesses, as well as Michiganders who wish to grow their own food during these difficult times, and urges the governor to reconsider her order.
  • Lifting Restrictions on Food Trucks Operating at Highway Rest Areas
    IJ sent open letters to states calling on authorities to rescind their prohibition on food trucks operating at highway rest areas. For decades, the federal government has prohibited commercial food trucks from operating at rest areas. States had to honor that prohibition or else risk losing their federal highway funds. But in response to the ongoing pandemic, the Federal Highway Administration has declared that it will not enforce that prohibition. While many states followed suit, IJ sent letters to the following states asking them to allow food trucks to provide hot, fresh meals to hard working truck drivers as well:

  • ShopInPlace
    IJ’s legal clinic at the University of Chicago and activism team have launched websites in Chicago, the District of Columbia and Miami offering consumers a place to find neighborhood small businesses still selling products essential for residents sheltering at home. Within a few days of launching, the sites had already attracted hundreds of visits and thousands of consumers.

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