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Copyright (c) 1995 Iowa University
Iowa Law Review

ESSAY: The Permit Power Meets the Constitution

December, 1995

81 Iowa L. Rev. 407


Richard A. Epstein *


The proliferation of government regulations must count as one of the most obvious social trends of the past generation. The new wave of regulation works in many ways and across many different substantive areas. Sometimes it works by way of fines and inspections; sometimes by taxation; and sometimes it works by the issuance of permits. That last power -- the permit power -- is the subject of this essay. Although this power has become the focal point of enormous public discontent, it has received scant attention in the academic literature. In this case, however, silence is not golden. 1 The frequent war stories about the number of permits necessary to construct everything from a dog house in the back yard to a nuclear power plant are so legion that they should not pass unnoticed in the rarefied groves of academe. It is important, therefore, to ask how the permit system should operate in principle, how it operates too often in fact, and what, if anything, could be done to improve the situation. Intelligent legislation to simplify the permit process is always welcome, for no provision in the Constitution compels the government to issue permits before allowing individuals to go ahead with their business. While we cannot (and should not) strive for a permit-free society, I think we should move much closer to that end than we presently are. Hence the question: Does anything in the broad contours of the Constitution push us in that direction?

One's attitude toward the permit ...
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