“The Law Works, So Let’s Get Rid of It”: The Right’s New One-Size-Fits-All Argument
Pierce spots a winner in the argument against abortion clinic buffer zones, in which the fact that the buffer zones have prevented the incidents they were meant to prevent is evidence that they’re clearly not necessary:
Mark Rienzi, the Catholic University law professor who represents the protesters, said there has not been a documented case of violence at a Massachusetts clinic since the 1994 killings. “The idea that someone like that will be deterred by a painted line on the ground is nonsensical,” he said. “In the meantime, you shouldn’t be able to use that to stop women from being offered these other options. As a practical matter, that’s what happens.”
“The law works, so we should get rid of it” argument is identical to the one trudged before the Supreme Court against Sections Four and Five of the VRA—an argument SCOTUS bought. Here’s John Roberts, cashing in his ACA-is-a-tax chit:
Nearly 50 years later, things have changed dramatically. Largely because of the Voting Rights Act, “[v]oter turnout and registration rates” in covered jurisdictions “now approach parity. Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at unprecedented levels.” Northwest Austin, supra, at 202. The tests and devices that blocked ballot access have been forbidden nationwide for over 40 years. Yet the Act has not eased [its] restrictions or narrowed the scope of [the formula that determines which parts of the country that are covered]. Instead those extraordinary and unprecedented features have been reauthorized as if nothing has changed, and they have grown even stronger.
This is becoming a Thing on the right. Julia Ioffe caught Rand Paul doing the same backflip last summer, as he wondered at the necessity of environmental regulations when the air had gotten so much cleaner over the last century—thanks, you know, to those very same regulations:
In case you didn’t follow that: Government regulation of coal is bad and useless, and environmentalists talking about smoke stacks polluting the air are hysterical. The reason the former is bad and useless is that the air has been getting cleaner. The air has been getting cleaner because of government rules, which, so bad and useless otherwise, have here produced a result—cleaner air that gets increasingly more clean with time—which, again, is what makes the liberals and environmentalists look crazy. Which all, somehow, proves to Paul that regulation now, to deal with a different but similar problem—global warming or drowning polar bears—is not the answer, because regulation doesn’t work. Which is why the environmentalists are crazy for wanting it. Get it?
It’s no wonder this argument is attractive, as a) it’s portable, and b) it dovetails with a rational conservative view that government becomes <spooky>Big Government</spooky> somewhat via inertia. The state doesn’t just overreach through unnecessary laws, but through necessary laws that outlast their necessity.
But that falls apart pretty quickly. Voting, pollution, and clinic harassment are iterative issues. They don’t get “solved” or “cured.” If anything, the very people declaring these laws expired draw attention to the exact events—voter ID proposals, chemical spills in West Virginia or exploding plants in West, Texas—that demonstrate the danger awaiting a slackening of enforcement, let alone repeal.