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Panju: Abbott's plumbing maneuver should concern every Texan

After the Legislature declined to renew the state’s plumbing board and its control of an array of licenses, these government permission slips were set to go down the drain. The sunset of plumber licensing in Texas would have meant a freer labor market for plumbing services, consumers seeing an end to jacked up prices and chronic shortages, while the next generation of plumbers could enter a more accessible profession.

But on June 13, Gov. Greg Abbott issued an executive order to unilaterally resurrect the state’s plumbing board and licensing statute, using Hurricane Harvey recovery to justify his unprecedented move. In other words, the statute is on the books because of the governor, not the Legislature. By effectively writing the law himself, the governor’s executive order undermines the Texas Constitution.

Unlike the U.S. Constitution, our state constitution contains a separation of powers clause, which is essential to protect individual liberty. As U.S. Supreme Court Justice Neil Gorsuch recognized June 20 in Gundy v. United States, “there can be no liberty where the legislative and executive powers are united in the same person.” Simply put, the Legislature can pass and sunset laws. The governor cannot do either.

If the Legislature could pass off its legislative power to the executive branch, the separation of powers enshrined in Article II, Section 1 would be rendered meaningless. By ignoring the Texas Constitution’s separation of powers to resurrect the plumbing board and licensing via executive order, the governor ignored both a bedrock principle of constitutional governance and a growing, bipartisan consensus on the harmful burdens imposed by occupational licensing.

Unsurprisingly, plumbers, not consumers, were frantically trying to save the licensing board after the Legislature let it sunset. Because thwarting competition is hard to defend publicly, licensed plumbers instead turned to scaremongering — and ignored the severe problems with the state’s licensing regime.

Back in January, the Sunset Advisory Commission found that the Texas State Board of Plumbing Examiners, which is controlled by licensed plumbers, imposed “a litany of constraints on plumbers that make entry into the trade and progression through a career difficult.”

Incredibly, it’s much easier to become an emergency medical technician than a plumber in Texas, with licenses for the former requiring only 150 hours of coursework. In contrast, the next generation of plumbers must spend at least four years working for other licensed plumbers — their future competition — in order to earn their journeyman’s licenses. Worse, journeyman plumbers need to work for another four years before they can perform work without supervision as a responsible master plumber.

Those “unnecessary burdens” have exacerbated a workforce shortage, with “about two-thirds of contractors report[ing] difficulty filling plumbing positions,” according to the commission. That “means fewer resources and inflating costs for consumers for plumbing services.” This would seem to exacerbate Hurricane Harvey recovery efforts — the very basis for the executive order.

Simply put, politically connected plumbers lobbied to make it prohibitively difficult to start a plumbing business, effectively protecting themselves from competition. Or as the commission concluded, “Board behavior reflects a misplaced focus on regulation for the benefit of the industry, rather than to protect the public.”

In addition to ignoring the evidence raised by the commission, the executive order also ignores the findings of the governor’s own Commission to Rebuild Texas. In its report, the post-Harvey Commission cited shortages in some building trades — “particularly plumbers” — as an “ongoing problem.” As a result, it concluded that affected property owners “struggled to find legitimate, skilled tradespeople to help them rebuild after Hurricane Harvey.”

Abbott’s executive order doubles down on an anticompetitive licensing board controlled by market participants. Texans, including those affected by Hurricane Harvey, will bear the cost.

The government can address legitimate concerns over public health and safety with less restrictive alternatives to licensure. In fact, half a dozen states — including New York — don’t license plumbers.

Local governments across Texas heavily regulate plumbing services using building codes, with many cities requiring permitting and plan reviews before plumbers can begin working, as well as regular inspections for plumbing worksites while jobs are ongoing and after it they are completed.

In addition, unlike mandatory licensing, voluntary, private certification would let plumbers obtain a credential that signals quality and expertise, without imposing barriers to entry. Private certification is already a popular method of ensuring quality for car mechanics (think ASE certified). Professional mechanics are not licensed by the state, yet consumers regularly trust them each day to work on vehicles with sophisticated systems that transport millions of Texans each day at high speed. Plus, car repair shops are never in short supply of labor, unlike plumbing businesses.

These less-restrictive regulatory and voluntary alternatives to licensure minimize burdens for workers and ease shortages without sacrificing consumer protection.

Easing licensing barriers would also stay true to the Texas Constitution’s protections for economic liberty and recent Texas Supreme Court precedent.

In a landmark case litigated by the Institute for Justice, Patel v. Texas Department of Licensing and Regulation, the Texas Supreme Court struck down a licensing scheme for eyebrow threaders that was “so unreasonably burdensome that it [became] oppressive.”

Unfortunately, with his executive order, the governor preserved a system that infringed on Texans’ right to earn an honest living and blatantly violated the separation of powers. That should concern every Texan.

— Arif Panju is the managing attorney for the Institute for Justice’s Texas office in Austin.

Today's Bible verse

“O God, you are my God, earnestly I seek you; my soul thirsts for you, my body longs for you, in a dry and weary land where there is no water.”

Psalms 63:1

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