Live and Let Fry

My wife and I were in New York City last month for a weekend. It was my first visit to the metropolis in years and my first time ever staying overnight. Not long after our arrival, I saw something I had been warned about: immigrant women, their children by their side, selling chopped fruit in plastic cups on the street.

For some people, this is one of the most ancient and natural things a poor person can do. For others, it’s symbolic of a border and immigration system in chaos, or even of political issues more lurid than that. Whatever you think of the border and immigration, I find it hard to make sense of the position that—given these people are already here, right now—they should not be allowed to engage in even such a basic form of work as selling some chilled fruit on a hot day.

Are they authorized to work in general and licensed to vend in particular? Maybe not. Nonetheless, I prefer them to the vendors (usually men) selling suspiciously cheap name-brand bags and watches. I remember those guys from Manhattan day trips when I was kid, so the addition of female fruit-sellers to this marginal sidewalk commerce is hardly the nail in the coffin for the city.

Sometimes—probably much more often than the viral news suggests—unlicensed vendors are caught and punished; they’re fined or even arrested. In 2019, this happened to one of New York City’s “churro ladies” and made the rounds on social media. But it’s a perennial issue in the city, and it flared up again amid an official city marketing campaign:

Now New Yorkers are dunking on the city campaign for its claim to love “the churro lady” in its Instagram post promoting the design overhaul. The churro lady in New York is not a single person but rather has come to be representative of the churro vendors in the subway, often women, who have been routinely ticketed by the city and are the subject of law enforcement harassment.

The Street Vendor Project, which advocates for street vendors in New York City, wrote in the comments section of the post, “Please return the $1,000 fines issued to churro ladies,” while others have taken to Twitter to point out the hypocrisy, with one journalist writing, “does this gets [sic] the churro lady a free pass next time she gets arrested by NYPD?”

A 2022 report by Gothamist found that despite the city claiming to move enforcement away from the NYPD, street vendors are actually getting ticketed more than they used to.

I remember the social media commentary, and I particularly remember nearly all the urbanists I follow going to the mattresses for the churro lady. Some will perceive this as just another example of urban lawlessness, slotting the churro lady example, as they do the fruit ladies, into a pre-formed political narrative.

I understand the position that these vendors should “follow the law.” I think “follow the law” is generally both good and necessary advice. But there’s also a certain absurdity in having laws which effectively stop people from doing what people have always done. When the proscribed activity is something as ancient and universal as somebody with very little money, but a little bit of skill and a lot of time, setting up a little stall on the street, what does “follow the law” mean anymore?

This question of the hyper-regulation of vending is a microcosm of a larger phenomenon: that America’s combination of zoning codes and laws regulating commerce have, in effect, banned cities, as anybody before about the 1930s would have understood them. Or to take it even further, as small North Carolina builder Aaron Lubeck did on X, these regulations have sterilized cities. We have imposed these rules not merely on new developments but on existing urban fabric that makes it impossible to use that fabric in the manner for which it exists in the first place.

In legally prohibiting much of what a traditional city is, we have also foreclosed much of the opportunity that cities once provided to the least fortunate, messy and uneven as that opportunity may have been. From our position of affluence, we seem to think that we can get rid of poverty by getting rid of the things we associate with poverty. And, relatedly, we mistake those things associated with poverty for things that generate poverty, rather than being the means by which poor people can lift themselves out of poverty.

We do this with public transit, with street vending, with small businesses of all sorts (especially home-based businesses), with tiny apartments and single-room occupancies, with tiny vehicles. We imagine that in taking these things away or making them frictional, difficult and artificially scarce, the need for them—or the people who need them—will somehow disappear. This is like teaching a baby to chew by pulling out his teeth, or teaching a physically disabled person to walk by taking away his crutches.

Perhaps, all that acknowledged, “the churro lady should follow the law” still feels like the right answer. Perhaps some will read my argument as critical legal theory—the conceit that the law is merely a codification of somebody’s politics and, therefore, a sleight of hand to enforce one particular agenda while disingenuously appealing to some higher principle. I suppose I would argue that the laws in question here have already borne out this view, in this particular case.

Nobody would defend a law that says all people must wear a pair of inside-out polka-dot underwear on their heads before they leave their house and enter the public street. Not only would such a law be unconstitutional, but it would be insane.

The idea of so tightly regulating so simple and universal and ancient a phenomenon as selling food out of a cart or stall on the street at crowded spots in the city is an insanity of the same order and degree. But those of us who do not need recourse to such hardscrabble opportunities have, unfortunately, made our peace with it.

From the perspective of human history, and considering the means by which people have lifted themselves up over centuries, it is almost perverse to ban street vending; to ban backyard cottages and granny flats and duplexes and thereby effectively ban multigenerational families; to socially engineer by force of law something that represents a schism with who and what humans and their societies have been for all of recorded history.

One man’s terrorist, goes the saying, is another man’s freedom fighter. But we aren’t debating here when death and destruction and violent resistance are justified—those are thornier questions. We are debating only whether the state should force people of little means to do nothing, when they could easily get to work if simply allowed to do so.

Our society has put deeply important values in tension—work ethic and productive activity versus the law and the importance of following it. It isn’t the churro lady or the fruit vendor who did that. It’s the people who thought they knew better than history and made their word law. In this case anyway, so much the worse for the law.