The Corner

‘The Disabling of America’

Our friend Mario has a major piece on the ADA in the new issue of The American Interest with Richard Epstein:

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.