The bucolic town of Julian, California, has had a rough decade. Tucked away in the hills above San Diego, Julian has an historic ambience that has long made it a regional tourist attraction. In 2005, it was still rebuilding from a forest fire that had destroyed 500 homes when tragedy struck again—this time in the form of a San Diego attorney named Theodore Pinnock.
Paraplegic and wheelchair-bound, Pinnock threatened most of the businesses in Julian with lawsuits if they did not quickly install accommodations for the disabled, in compliance with Title III of the 1990 Americans with Disabilities Act (ADA). He also demanded that they reimburse him for certain “research fees” averaging about $2,500 per business. Pinnock had his legal tactics down to a science; by the time he was disbarred last year (for unrelated reasons) he had filed more than 1,000 lawsuits in Federal court and hundreds more in state court.
Little Julian got busy giving its gold-rush-era storefronts a massive architectural makeover in keeping with Justice Department dictates, spending buckets of money and destroying buckets of quaintness and appeal in the process. Many of Julian’s mom-and-pop storeowners were stunned by Pinnock’s flurry of demand letters. Harry Horner, owner of a pizza parlor who later testified to Congress on the abuses of the ADA, said that Julian’s businesses had long served customers in wheelchairs: “They seem to be accommodated and there’s never even been a complaint.”
Julian is far from alone in its encounter with the ADA. Hundreds of thousands of lawsuits have been filed in state courts under the ADA’s accessibility rules for establishments that serve the public. Under the ADA’s separate employment discrimination provisions, more than 350,000 complaints have been filed with the Equal Employment Opportunity Commission (EEOC), accounting for about 20 percent of its caseload.
Together with its precursor, the Rehabilitation Act of 1973, the ADA contains a complex amalgam of intrusive government rules applicable to virtually all public and private entities. Title I prohibits workplace discrimination against persons with disabilities. Title II prohibits discrimination against the disabled in the provision of state and local government services. Title III requires the removal of “barriers to access” in “public accommodations” in virtually all facilities, public or private, that are open to the public. Implementing regulations has carried the law’s mandate far and wide across American society.
This massive transformation of the quotidian realities of American law had modest origins. In 1990, President George H.W. Bush signed the Americans with Disabilities Act with two laudable, if deceptively optimistic, goals: eliminating employment discrimination against the disabled, and expanding their access to all the places, things and services available to the general public. The ADA sought to build on the perceived successes of earlier civil rights legislation dealing with race, sex and age. Two decades on, it’s fair to say that the ADA has dramatically exceeded expectations, particularly those of its most pessimistic detractors.
The problems of the ADA are entirely separate from the explosion in the number of Americans receiving Federal disability benefits that Congress triggered when it relaxed medical screening standards in the 1980s. Today more working-age Americans—about 13 million—receive disability benefits than work in manufacturing, about three times as many as in 1990.1 That’s a serious budgetary challenge, but at least the Federal government can control the problem by just re-tightening its screening rules.
The ADA, on the other hand, presents challenges that are much more complicated, pervasive and insidious. It is increasingly clear that, notwithstanding its good intentions, the ADA takes a counterproductive approach to the problems it is trying to solve. Its economic premises are flatly mistaken. It fails any rational cost-benefit analysis. And it reveals a philosophy of massive government interference in ordinary social interaction that is misguided and worrisome.
The ADA’s goal is to alleviate burdens of disability. But means matter just as much as ends. In practice, the ADA relieves the disabled of much of their considerable potential for productive self-reliance in a properly functioning market. Moreover, the ADA’s benefits come at an unconscionable cost to society as a whole, including major adverse consequences for the disabled themselves. With its vast statutory charter, the ADA has insinuated Federal power deep into state, local and private matters in absurd and unpredictable ways.
The ADA urgently needs to be replaced with a sustainable framework of state and local rules that optimize access while respecting both the limits of constitutional government and the vital freedom of association. In many cases, a more lightly regulated labor market will happily offer opportunities to disabled persons, so long as they and all other market participants can define the terms of their own offers. In other cases public investment in capital improvements will no doubt be desirable. Where market forces do not respond, needed improvements should be financed the good old-fashioned way, by taxing and spending in broad daylight. Yet the right financial and business decisions cannot be made until we discard the essential policy conceit of the ADA: that the statutory right of equal access for the disabled should be absolute, regardless of its cost and the rights of others.
Mistaken Economic Premises
n his seminal 1986 work on the Rehabilitation Act, Institutional Disability, Judge Robert Katzmann argued that transportation policy for the disabled had been bedeviled by Congress’s confusion over an essential question: Should the policy seek equal rights of access, regardless of costs, or should it seek increased mobility for the disabled and other needy populations by cost-effective means? In devising the ADA in 1990, Congress’s decision to adopt the former, more aggressive option doomed that experiment to failure.
As enacted, the ADA proclaims that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” No one denies that persons with disabilities face barriers to participating in many areas of public life. But it is the disability, not discrimination, that most often creates these obstacles. It is therefore no longer a simple matter of removing obstacles, but the far more grandiose objective of providing massive subsidies to help the disabled, no matter the cost to the economy as a whole, and no matter the impingement upon the rights of others not covered by some Federal statute.
The ADA would have few negative consequences if it were merely designed to eliminate prejudice, a laudable aim to be sure. But in a burst of excessive ambition, Congress sought to neutralize the negative effect of the disability itself. Worse, it was not prepared to put the costs of these government initiatives on budget. Rather, the law mandates full compliance with its standards for everyone who offers anything that a disabled person might want, regardless of how many disabled people actually want it (a question about which the law is mute).
The ADA never asks whether in social terms the marginal costs of incremental support produce benefits of equal or greater amount. Instead, it is prepared to spend untold billions of dollars of other people’s money to approach, but never achieve, the unattainable goal of equal outcomes. Driven by this ambition, the ADA’s rules are necessarily draconian. Compliance costs soar, but they cannot decisively amend a world in which a certain amount of unfairness, bad luck and inequality will ever endure.
It is simply not true that prejudice limits the right of the disabled to fully participate in society, as the ADA’s findings state. The disabled have the same rights of property and contract as everyone else. They may dispose of their own goods and services as they see fit like everyone else. The terms of trade may change, but the logic of mutual gain through exchange remains. If prejudice leads one person to refuse to deal with a disabled person, his shrewder (and perhaps more compassionate) rival can enter into a transaction for mutual gain. The price that the disabled person receives for what he supplies should reflect its value to people on the other side of the market. Even if some individuals succumb to prejudice, there are plenty of others willing to come along and claim that “cash on the table.” Indeed, it is a mistake to attribute generous accommodation of the disabled to the ADA. This would have happened anyway—and was happening anyway.
Disabled persons enjoy the right of full participation so long as they have the right to compete on equal terms with everyone else. To the extent their disability, or any other factor, reduces the amount of money people are willing to pay for the goods or services offered by any group of people, the market will clear at a lower price—but it will clear. Replacing a properly functioning market with the forced-loss transactions of antidiscrimination rules has the effect of creating a privileged position for some by unfairly excluding others who offer superior goods and services at lower prices.
Firms understand this dynamic and thus often take strong, if covert, steps to avoid hiring disabled persons on terms that make the deal too costly or risky for the employer. The ADA’s employment antidiscrimination provisions thus have an unintended but deeply disparate impact among disabled workers: According to one MIT study, the ADA has increased job security for the disabled who are already employed, but has reduced employment prospects for disabled persons generally.2 The ADA thus has the perverse effect of making life more difficult for disabled job seekers.
The ADA’s final congressional “finding” is blind to this fundamental reality:
[T]he continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.
This bold manifesto is economic nonsense. Potential profit in the billions of dollars does not go ignored in a properly functioning market; money is not left on the table. What really costs the United States billions of dollars in expenses “resulting from dependency and nonproductivity” is the ADA. Both overall output, and the prospects of the disabled, would improve if they were allowed to compete with everyone else in an unregulated market. Indeed, the current system requires disguised subsidies whose only effect is to decrease overall productivity while reducing labor force participation by the disabled.
Ironically, the ADA’s insistence that all workplaces be suitable for all disabled workers compounds the problem. The important factor here, which the ADA totally ignores, is scale. Any capital improvement that works for one disabled worker will also work for a dozen or a thousand. Spread over a wide population, it then makes sense for companies who employ large numbers of employees to seek out disabled persons by reducing the per-unit labor cost of their disabilities. Thus, in a properly functioning market, the wage gap narrows, productivity goes up, and compliance costs, public and private, go down. Unfortunately, the ADA condemns these sensible allocations of social resources as the outgrowth of “prejudice” for which senseless duplicative expenditures are said to provide the only escape. Employers with thousands of employees may be able to survive an onslaught that could mean bankruptcy for smaller businesses.
The ADA’s onerous obligations are supposedly tempered to protect against “undue burden.” But such an amorphous standard requires impossible determinations of degree that make it a singularly ineffective counterweight to the ADA’s basic command. As a result, the law now subjects similarly situated businesses and public entities to totally different obligations, without any guidance or an explicit budgetary cap. No firm can be entirely sure what its obligations are until it gets sued. This distortion of rational economic behavior can only result in a massive misallocation of resources, from the point of view both of the disabled and of society as a whole.
One particularly noxious feature of the current system is that all of its requirements are off-budget, so that the public loses in two ways: Firms become less efficient, and public treasuries collect fewer revenues. One way to control these costs is to put these items on-budget by using direct government subsidies. Government subsidies are inherently wasteful, but compared to the ADA they have a cardinal virtue: The payments are transparent, so at least we know how much is being spent on any given goal. Society can then decide by democratic processes whether the benefit is worth the cost. The ADA, however, renders democratic scrutiny impossible, adding incalculable waste throughout the society.
Divorcing Costs and Benefits
he ADA’s misshapen game plan was based on Congress’s conscious decision to divorce costs-and-benefit calculations by creating virtually absolute rights of nondiscrimination and access for the disabled. Under the ADA, the agencies charged with implementation are virtually required to ignore costs. The predictable result has been regulatory overkill on an epic scale.
The competence of the Department of Justice does not extend to architecture and engineering. And yet the department has been busy redesigning virtually all of America’s indoor and outdoor spaces, issuing mandates in head-spinning detail on the proper ways to design playgrounds, buses, trains, train stations, gym rooms, pools, spas, courtroom jury stands, witness boxes, and even restaurant table arrangements and boat slips from sea to shining sea. The department’s official 2010 Standards for Accessible Design mixes comedy and horror in the best tradition of Abbot and Costello. Amusement park rides that make the most able-bodied among us queasy now have to be wheelchair-accessible. A pool with a sloped entrance can accommodate simple wheelchairs, but motorized wheelchairs don’t do well under water, so the Department of Justice requires the hapless operators of such pools to keep a submersible wheelchair handy.
The in terrorem effect of the Justice Department’s mandates is compounded by the insidious practice of issuing informal administrative guidances and advisory opinions that the department enforces even though they have not survived a notice and comment proceeding. These informal pronouncements lack the force of law, but courts routinely use them to clarify the ADA’s otherwise unknowable mandates. Once a court has embraced some guidance, the case itself gets cited as legal authority. This nasty circumvention of the rule of law works to eviscerate democratic control over the administrative process, vitiating the basic protections offered by the 1946 Administrative Procedure Act against abusive agency rule-making. The obvious threats to the democratic process have already been felt by the many Americans who have come into the crosshairs of ADA czars.
There is bitter irony in the logic of the ADA. Many employment-discrimination cases have been won by proving “disparate impact.” But the ADA’s very purpose is disparate impact. In some sectors of business, the accommodations required by the ADA do not appreciably increase per-unit labor costs, but in many others they do. And within each sector, competitors are subjected to different obligations depending on their financial resources. So in practical effect the ADA’s requirements vary from business to business in an erratic and arbitrary fashion. Thus it happens that, as with the antitrust laws, in seeking to “correct” the supposed failures of the market, the ADA often winds up creating the very evils it was meant to eliminate. Let us count the ways.
Employment nondiscrimination: Title I of the ADA prohibits employment discrimination against persons with disabilities, with a record of disability, or who are regarded as having a disability. The 2008 ADA amendments reversed prior Supreme Court decisions that limited the scope of the ADA’s core definition of “disability”, expanding it to include those disabilities that may be episodic as well as those that the disabled person has been able to mitigate personally.
Hence, an employer’s decision to hire or fire a disabled person, or to accommodate that person in a certain way, is scrutinized not for the action itself but for the motivation behind it. But the motivations behind any business decision are manifold; no government agency could rationally regulate the relative weight of such considerations. Yet that is precisely what the ADA requires.
Thus, if an employer cites a job applicant’s low intelligence as a reason for not hiring, he could be liable under the ADA, if some remote Federal official with no real world experience were to decide that mental acuity is not required for that particular job. If the employer normally requires that administrative hires be able to type sixty words per minute, a disabled employee may be allowed to type only forty words per minute if the Federal government determines this speed to be sufficient to carry out “the essential function” of that job. The employer who fires an employee for reasons relating to alcoholism, too, may find that he has violated the ADA.
Federal courts commonly invoke the mantra that the ADA is not a job insurance policy, but only corrects the business inequities that the disabled face. Both parts of this assertion have been proven false.
Overall employment of disabled persons (which the ADA was supposed to increase) actually dropped as a direct result of the law. According to the MIT study, the average number of weeks worked by disabled men between 21 and 39 years of age (the primary working-age group) dropped by more than 10 percent in the first two years after the ADA went into effect, reversing the gains of the 1980s. This result held even when controlling for the downward pressure that disability benefits exert on labor force participation.
Thus the ADA sadly creates a rational basis for businesses to discriminate against the disabled. The hefty costs of accommodation and possible litigation dramatically increase the risk of hiring disabled persons in the first place. The higher costs thus induce the very discrimination the ADA was meant to prevent.
Because of its flawed economic premises, the ADA creates hurdles for would-be job applicants among disabled and non-disabled alike. Employers are barred from asking a job applicant whether he or she has a disability, or the nature or severity of a disability, unless it is job-related and consistent with business necessity. But the EEOC gives a vanishingly narrow reading of what counts as “job-related.” Because alcoholism is a disability, a potential employer may ask a job applicant if he has been drinking, but not how often the applicant drinks or whether he has a drinking problem. The EEOC has also decided that once an applicant discloses a disability, and requests an accommodation, it is illegal for the employer to ask the applicant what accommodation he would like before the job offer is made. Thus has the ADA “protected” many thousands of disabled job applicants from receiving job offers.
At the same time, the ADA provides employment protection for those disabled who are already employed. More than 60 percent of the nearly 100,000 disability discrimination complaints before the EEOC in one five-year period were for wrongful termination, with an employee success rate of about 60 percent. The fear of legal sanction keeps those privileged few in jobs and excludes new entrants—a plainly dysfunctional form of labor market rigidity.
State and local government: State and local governments—and their constituents—are among the hardest hit by the ADA. The Rehabilitation Act of 1973 imposed manifold obligations on all recipients of Federal funds; today that means virtually every state and local government agency in the country, given the pervasiveness of Federal “assistance.” Title II of the ADA, which imposes obligations directly on state and local government, doubles as an exercise of Congress’s enforcement power under the Equal Protection clause of the 14th Amendment, which thus reduces state and local governments to administrative subunits of the Federal government with respect to Federal nondiscrimination policy.
Title II prohibits discrimination on the basis of physical or mental disability by public entities. In practice, the prohibition requires the expenditure of vast sums by state and local governments to expand access to facilities, public transportation, parks, libraries and so on. Again there is little regard to the financial wherewithal of such public entities, let alone the opportunity cost of these expenditures.
The City of Philadelphia, for example, had to devote a third of its road-repair budget to installing 320,000 sidewalk ramps (“curb cuts”) throughout the city, even if none of the buildings on a given block were, or were required to be, wheelchair-accessible. Other hard-strapped cities have had to borrow large sums to cover the required expenditures.
The ADA has caused particularly vexing problems for public transportation. A transit system that provides plentiful “para-transit” services for the disabled—for example, an on-call van service that transports disabled persons from point A to point B—violates the ADA unless it also allows full access for the disabled on all regular public transportation. The ADA requires that state and local transit agencies fund both services out of general revenue. In consequence, these transit agencies have had to curtail badly needed transport services for elderly people in order to provide a much smaller number of disabled people with redundant services.
Public accommodations: Title III of the ADA contains a de facto universal building code that imposes specific accessibility solutions for the disabled on any facility open to the public, from restaurants and hotels to parks, bowling alleys and golf courses. Virtually all of America’s retail businesses are subject to Title III.
The most stringent requirements apply to new buildings and facilities, which must be accessible and usable by persons with disabilities, in accordance with strict architectural guidelines issued by the Civil Rights Division of the Department of Justice. Congress apparently thought that the added expense would be negligible in new construction compared to existing construction. That optimistic and naive assumption demonstrates yet again the faulty economic premises of the ADA.
Hiding the true costs of a policy does not minimize them. If the kitchen and bathroom floors of new buildings have to be at least five feet long on each side, as ADA regulations require for non-residential constructions, builders in suburban Phoenix will be annoyed, but some of their counterparts in the cramped New York City market may be unable to generate positive returns on their proposed projects. The rules artificially constrict supply and raise prices—another significant hidden cost.
Title III also triggers major renovation obligations—as in Julian, California—when any existing building or facility undergoes a statutory “alteration.” These alternatives can be as meager as putting up new drywall or moving an ATM from one spot to another. The obligation is supposed to apply only “to the maximum extent feasible.” But that supposed protection is narrowly construed by courts, so that property owners are often required by judges to make what they think are unfeasible changes to the “maximum extent” possible, thereby sacrificing useful improvements on the altar of a high government policy that in the end leaves everyone worse off.
What Title III requires is a catastrophic misallocation of resources in both the public and private sectors. Suppose a small internet firm that only occasionally sees an actual client in its offices wants to renovate its new location in a 1,000 square foot space. If the firm knocks down a single drywall (thereby creating an “alteration”), it will have to rearrange the whole rest of the space such that the small kitchenette and small bathroom on the first floor can each accommodate a wheelchair doing a full 360-degree turn. Now, instead of devoting 20 square feet to the kitchenette and bathroom, the firm will have to devote 60 square feet or more, possibly displacing space for one or more employees. The unpalatable choice is between the foolish waste of new resources and staying in an obsolete space.
Many existing “public accommodations” are spared some of these excesses but are still subject to onerous accessibility requirements, including the removal of architectural and communication barriers where “readily achievable.” Again, this depends on the particular financial circumstances of the business, among other things. But in principle as well as in practice, the rights of private proprietors to put their limited resources to the most economical use gives way to the rights of disabled persons under Title III of the ADA. The costs are passed on to all customers, of course.
To curb the obvious incentive for abusive lawsuits in Title III, Congress limited plaintiffs’ remedies to injunctive relief in most cases—court commandments to provide specific access or remove specific obstacles, as opposed to monetary damages. But because the ADA provides that defendants must pay the attorney fees of successful plaintiffs, an entire cottage industry has developed within the legal profession targeting small businesses by the thousands, even when not one single disabled person has actually suffered lack of access. Because the ADA doesn’t provide attorney fees if the defendant merely complies with a warning, many businesses only find out they are in noncompliance after they are served with a full lawsuit. The town of Yuba City, California, had to bribe one lawyer thousands of dollars so that he would agree to stop filing “drive by” lawsuits against area businesses. Many of these lawsuits allege violations of the Justice Department’s various proclamations on points of architectural minutiae, such as the precise slopes of ramps and the precise distance a toilet must be placed from a wall and hand rail.
More than any other part of the ADA, Title III’s “public accommodations” provisions demonstrate the indefensible overreach of the ADA, quite apart from its obscene, unintended consequences.
he ADA and its precursor Rehabilitation Act rely on three distinct kinds of Federal power: regulation of private commerce, regulation of state and local government, and indirect regulation of state and local government through Federal spending power. All three cases pose serious constitutional problems under our system of government.
On the first, the Constitution was carefully crafted to grant Congress the power to regulate commerce “among the several states” but not commerce purely internal to a state. That distinction between national and local concerns held fast in the Supreme Court for 150 years, until the height of the New Deal. Under withering pressure from Franklin D. Roosevelt’s initiatives, the Court whittled the field of “purely internal commerce” down to nothing, expanding Federal power to all activities with a “substantial effect” on interstate commerce, far beyond anyone’s previous understanding of the Constitution.
On this sensitive point, the ADA borrows the tried and tested language of the Civil Rights Act of 1964, extending its application to all businesses “engaged in an industry affecting commerce.” That familiar formulation prompted Justice Clarence Thomas’s famous dissent in U.S. vs. Lopez (1995), where he rightly insisted that “the doctrine of substantial effects has no stopping point.” The ADA reaches activities with any effect on commerce, and of course virtually all activity has some effect on commerce.
It is fair to ask whether the Constitution could have been ratified if Americans of the founding generation had envisioned how Federal power would grow to eclipse state power over purely local matters. Statesmen like Patrick Henry campaigned against the document because they feared that it would eventually turn into “a vast concentration of government power.” The ADA’s imperial impositions suggest that Henry’s fears should have been taken more seriously.
One thing the Framers could not have foreseen is that state power has not receded as the reach of the Federal power has expanded beyond its intended constitutional limits. Rather, today all economic activity is subject to the double jeopardy of overlapping regulation from local and national authority. The ADA is a textbook case of the absurd results that inevitably ensue from such a scheme. Thus builders who obtain all necessary building permits from local authorities might still learn that they are violating the ADA when some self-appointed enforcer of Federal standards like Theodore Pinnock shows up. Unfortunately, excessive litigation is not an unintended consequence of the ADA; it is the virtually the only way that the Federal government could implement the tsunami of rights and obligations created by the ADA. This is why many lawyers love the law.
Still, for all the expansiveness of Congress’s power to regulate interstate commerce, the Supreme Court has held fast to one tenet of federalism: Congress cannot command state governments to implement Federal law. Nonetheless, the ADA creates rules to regulate state and local governments directly (Title II) by resorting to the Civil War amendments—particularly the 14th, which makes the Equal Protection clause of the Constitution applicable to the states and gives Congress the plenary power to enforce it by all appropriate legislation. The very fact that Congress justified the ADA under the Equal Protection Clause shows just how far the interpretation of this Clause (which was meant to limit state power) has strayed from its original, constitutional purpose.
Finally, the Rehabilitation Act allows the Federal government to attach all sorts of conditions to the state and local recipients of Federal aid. State and local governments now depend on Washington (and its gargantuan deficits) for perhaps 40 percent of their budgets, chiefly in health care, education and transportation spending. The Supreme Court has yet to recognize that conditioning Federal grants to the states allows the Federal government to control state agencies almost as effectively as if it could regulate them directly. In South Dakota v. Dole (1987) the Court insisted that, broad as this power is, Federal financial inducement cannot “pass the point at which pressure turns into compulsion.” But even after the Obamacare decision in NFIB v. Sebelius last year, the Court has still not provided useful guidance for drawing the line between pressure and compulsion. For now, the doctrine of coercion remains moribund.
This combination of carrot and stick creates enormous constituent pressure to accept the money whatever the conditions, as state opponents of Medicaid expansion are now discovering. In its decision on the health care law last year, the Supreme Court ruled that Congress couldn’t condition the funds now allocated to any existing program on the state’s compliance with the onerous conditions of a new program. But Congress can still offer or refuse money for the new program, so the coercion is still there.
In each of these areas, Congress has been able to escape any binding constitutional limitation on its power. None of the many moving parts of the ADA would have been within Congress’s constitutional powers as originally understood. Even today, the Court cannot find warrant for the ADA wholly within any one power, but must cobble together several constitutional powers, each one dubious in its own right. The constitutional problems may seem academic, but they have enormous practical consequences, chiefly because they hopelessly confuse the lines of government accountability. Few parties adversely affected by the ADA have any idea who directs the policy or where to turn for redress once they have figured out what the rules are.
Ending the ADA’s Endless
reedom of association is fundamental to democracy. Except for public utilities, common carriers and some rare cases of necessity, the basic rule has always been that the owners of private property have the absolute right to refuse or admit others onto their property for whatever reason they see fit, and that those engaged in commerce are free to negotiate a contract with whomever they want on whatever terms they want. Independent decision-making is a precondition for the competitive market that alone is capable of reallocating human and material resources from where they are less valuable to where they are more valuable—the essence of wealth creation.
Anyone who wants the disabled to have the maximum opportunity to find the roles for which their talents and capabilities are most valuable, to themselves and others, should be adamantly opposed to the ADA. The law is founded on fatal economic premises that make themselves felt throughout the law’s whole extent and affect every American alive. One chapter in a 2003 book published by the University of Michigan, Backlash against the ADA, gives an honest account of what many ADA advocates seek:
To effectuate economic and social justice, an economic system must be redistributive and collectivist in nature. Discrimination in general, and discrimination against disabled people in particular, will not be eliminated until the economic system itself is changed.
Given the social-authoritarian agenda behind much of the ADA’s operation, it is little wonder that disabled and non-disabled alike have suffered pointlessly under its commandments.
Danger lurks whenever government shifts from setting rules of the road to determining the composition of the traffic. The more the state fine-tunes social and economic activity to achieve specific outcomes, the more oppressive, arbitrary and unpredictable its rules become, as Friedrich Hayek observed long ago in The Road to Serfdom (1944). The democratic edifice of neutral rules fractures under the pressure of central planning, and totalitarian government begins to seep in through the cracks. That is exactly what has happened with the ADA.
The rule of law depends upon rules that are neutral, general, clear, consistent and prospective. The level of discretion that the ADA confers on Executive Branch agencies and the courts makes it impossible for government to stay true to those neutral virtues. The ADA subordinates property rights to a new kind of entitlement for a favored class of people, an entitlement that imposes wildly disparate costs on the rest of society. The program has now taken on a life of its own, granting government authorities the power to impose broad social mandates largely without limit, fairness or reason.
The ADA’s enforcers have undertaken the utopian task of redesigning society to eliminate the disadvantages of disability. They will never be satisfied. Every decade will bring another layer of regulation, each more intrusive and incomprehensible than the one before, each accompanied by another tidal wave of avaricious lawyers. The lesson of the ADA should be clear: No law of this kind should ever be enacted, on any subject, in a properly functioning democracy.
1Nicholas Eberstadt, “Yes, Mr. President, We Are a Nation of Takers”, Wall Street Journal, January 24, 2013.2Daron Acemo?lu and Joshua D. Angrist, “Consequences of Employment Protection? The Case of the Americans with Disabilities Act”, Journal of Political Economy (October 2001).