Tim Sandefur on a very interesting pending 9th Circuit case, in which the court will have to decide whether an occupational regulation that the government's own expert deems irrational is nevertheless constitutional.
Sandefur also addresses the right to earn an honest living more generally. I wasn't aware that the 10th Circuit held in 2004 that "absent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest." Such a holding is contrary to hundreds of years of Anglo-American thinking.
It's one thing to say, as courts have done in the past, that any public-spirited rationale for a law restricting employment rights constitutes a sufficiently rational basis to uphold the law, or even to say that a court will make up such a rationale if the state doesn't provide one, as the Supreme Court has occasionally done. I think this is wrong, but at least it's consistent with the long-standing ideal that restrictions on occupational liberty must have a public purpose, and not simply be an effort to promote private monopolistic interests. The idea behind this weak rational basis test is that courts should defer to legislative judgments, not that protectionist legislation is inherently legitimate.
It's much worse (though perhaps more honest) for a court to find that no public-spirited rationale for particular restrictive legislation exists, and to nevertheless uphold the law as a naked exercise of political power for the benefit of a special class. This type of law that has been disfavored in our constitutional tradition at least since the Statute of Monopolies was enacted in England in 1623.
I am reminded of the famous line from Justice Peckham:
Its amazing how truly we've drummed out the original applications of the Equal Protection Clause from modern constitutional law.
I also doubt that there are many licensed professions whose activities cannot be dissected into discrete acts that could be competently performed by specialists who would have no need for the complete spectrum of competence required to obtain a license. I've drafted several dozen appellate briefs, for instance, and never had the slightest need to explain or understand community property law or half the other subjects covered on the bar exams I had to pass. So, if I promise only to take cases that require appellate briefs on First Amendment and due process issues, do I have a right to practice law in the states where I'm not licensed? Isn't that a fair synopsis of the San Diego barbering case?
Do you believe in the Bar and its ability to restrict the unwashed masses from the practice of law? I've always been amused by libertarian attorneys/law students who have no problem with the fact that in the end, we're just Teamsters in suits.
indeed. how far we are from the days when lysander spooner sued Massechusettes....
I think the problem with redefining his services is a practical one. If he advertises that he shoos seagulls, then he's likely to get fewer customers because the demand is for pigeon shooers.
But maybe he could advertise for gulls and hope for viral marketing to send the pigeon business his way.
Somewhere in this madness lurks that old line about transporting young gulls across staid lions for immoral porpoises.
I'm not sure I see the distinction. Is a law that regulates economic activity to benefit the poor count as a "naked exercise of political power for the benefit of a special class"? What if it is for the benefit of poor blacks? Does it change if it is to benefit rich whites or people with shoulder length hair or those who own condominiums?
Ultimately what distingushes the laws we think of as serving a legitimate public purpose (regulating economics for the benefit of the poor) from those which don't (regulating trade for the benefit of some monopoly) is that we make the moral judgement that giving economic help to the poor is desierable (or at least could reasonably be viewed as so) but the monopolist is obviously undeserving.
So what standard is the judge supposed to use here? Is he just supposed to substitute his own moral judgements? Some idea of what the founders' moral views were? Most reasonable seems some notion of widely accepted social values but then doesn't the mere passage of the law demonstrate that these supposedly widely accepted values are not so widely accepted after all?
Given the Enabling Clause's wording: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers...," wouldn't an "irrational" regulation be unconstitutional on its face?
Aviation actually works with this way. For repair technicians, there are certs for Airframe, Powerplant and Avionics. Most engineers do not require certs, but the work must (generally) be signed off by someone with a cert (a DER), and there are dozens of different kinds of certs there.
Part of the reason aviation works that way is that the engineering side is simply too complex for any one person to be able to cover the entire spectrum at an acceptable (safe) skill level. It does significantly increase the complexity of certification, but that price is accepted because there is no other way.
Maybe, but here we're dealing with a state regulation, not a federal one. Last time I checked, there was no clause in the U.S. Constitution authorizing the federal government to strike down "irrational" state laws. Although Professor Bernstein suggests that "This type of law . . . has been disfavored in our constitutional tradition at least since the Statute of Monopolies was enacted in England in 1623," judicial activism like he advocates has been disfavored since c. 1937.
Since the poor can't hire lobbyists or pay campaign contributions, regulations generally aren't for their benefit. In fact, I can't think of any regulation that has been unequivocally proven to have benefited the poor. OTOH, regulations that benefit the rich or favor well-established businesses over new competitors are everywhere.
Besides violating bedrock principles of due process (e.g., by aligning the judge with one of the parties and requiring the judge to help that party prevail), the rational basis makes a mockery of the very concept of rights. Much of the problem arises from the Court's ridiculous insistence that the law's true purpose is irrelevant. That's what causes these surreal line-drawing problems where judges find themselves trying to determine the point at which the proportion of irrelevant to relevant material on a licensing exam or curriculum becomes irrational.
For example, if all you want to do is sell caskets but state law requires you to be a fully-licensed funeral director, which in turn requires three years of mortuary school where less than five percent of the curriculum has anything to do with caskets, is that irrational? Obviously, there's no mathematical way to answer that question -- but if you don't understand what's "really" going on with that licensning law, then I'm sorry but you're an idiot.
History, experience, and public choice theory all tell us that politicians routinely use occupational licensing laws to favor special interest groups like funeral directors or cosmetologists at the expense of individuals. Pretending that isn't happening is not laudable judicial "modesty," it's abdication.
Sure, if you're in a union bargaining unit, the union AND the employer have voluntarily negotiated a union security agreement, and you're in a state that's not a right to work state, you are obligated to pay some portion of dues (albeit not for costs that aren't related to collective bargaining). But that's to solve a pretty obvious free-rider problem (since unions are obligated to represent everyone in their bargaining unit). And if you really don't like it, you can be employed at a similar job in a non-union shop.
Though, I should note, requiring lawyers to be licensed has never prevented America from having enough lawyers.
To be consistent no. Libertarians don't believe in licensure for doctors either. If there really is a problem with unlicensed folks practicing, the market would demand some type of private professional licensing program where you would only go to doctors or lawyers that are part of a number of these clubs which have high standards for entry.
Are you against licensure by the state of physicians? How mainstream or extreme a libertarian position is it to oppose such licensure? (As you might guess, I think it a nutty one.)
Very true! Does anyone oppose opening up the profession to non-licensed competition? Speaking as a member of the Guild myself, I think it would put pressure on lawyers to drop the mumbo-jumbo and speak English for a change. Wouldn't it be refreshing to read a case about "lies" rather than "material misstatements of fact"?
I am very libertarian, and my personal intermediate position is that the state can keep right on licensing "doctors" and "lawyers", but non-licensed people can perform the same roles.
In other words, if you cut your hand and need stitches, you are free to go to a state certified "doctor", but also free to go to a "medic" or a "health consultant" who is not state-certified.
As to the rational basis test, Debauched Sloth has it dead on. It's a farce. If the Court wants to uphold the law, the rational basis test is applied as stated. If the court wants to strike down the law, the court claims to apply rational basis, but really applies a higher standard. Constitutional scholars call these cases "rational basis with teeth."
While I, too, prefer plain language over legalese, there are times when the nuances we use are necessary. A "lie" (to me, anyway) indicates a conscious choice to mislead. It is neutral on whether the subject matter of the misleading is important or not. That is different from a material misstatement of fact, which is neutral on intent to deceive (maybe it was an accident, or the speaker really didn't know), but states that the untruth was on something important. The law provides different remedies based on those variations.
Strange, but I always thought that dormant Commerce Clause jurisprudence considered that to be a specific constitutional provision.
Nick
Monopolies may be less efficient on average, but thinking in terms of averages ignores the important consequences of volatility. Regulated monopolies can be more stable and less prone to wild swings than unrestricted competition. This stability can be valuable for society, and society can rationally prefer it and can rationally choose to pay a price for it. Society can prefer the approach for certain types of businesses, such as learned professions and public utilities, but it can expand or contract the relevant categories as it sees fit.
Either choice is rational. Such choices between rational alternatives are for legislatures to make. It is no business of courts to introject their own economic ideas and doctrines into the matter, and they have no right to take the power to make these choices away from the political branches.
To suggest that courts "invent" reasons justifying monopolies when they make arguments along these lines deserves comment. One difficulty about the rational basis test is that if misused it gives the greatest power to the judges least able to see reason in what those who disagree with them think. We should hesitate to interpret constitutional docrines in ways that reward the narrow-minded.
There is blatant protectionism in this field as well. The laws are written to protect the US Medical Schools.
In Idaho, if a foreign trained doctor applies for a medical license, they will not be allowed to even take the test if they attended a medical school that was not established before 1975.
I am told that this is a pretty common standard among all US States. Sorry to dash your dreams of opening that new Medical School in the Caribbean.
That is not entirely correct. Someone who graduated from a medical school established after 1975 can become licensed in Idaho, though the requirements are greater for them than for graduates of accredited American and Canadian schools. (With 3 years of supervised training in the US, that is residency or fellowship, and board certification or 5 years unrestricted practice elsewhere in the US, FMGs, or IMGs, can be licensed in that state.)
I don't know how many medical schools have been established outside the US and Canada since 1975 and been accredited by the WHO. So I don't know how many physicians who might want to practice (or train) in Idaho would be affected. Perhaps graduates of those proprietary medical schools you allude to.
"Protectionism." All profession licensure is "protectionist," the question being who or what is to be protected. I presume you think it is the physicians who practice in Idaho that need or want "protection" against competition. I very much doubt that is the case given the great difficulty that non-urban areas have in attracting physicians, and Idaho must be one of our least densely populated states.
I was asking the question for someone else several years ago. Even though the founding date of the medical school didn't affect this person, I found the emphasis on a particular date odd. If I had pursued the questioning beyond the person at the front desk, I may have received an answer that was more accurate.
However, at the time, the idea of protectionism did occur to me. However, unlike you, I never assumed it was to protect the jobs of US doctors. I assumed it was written to protect the position of US Medical Schools and discourage the founding of new medical schools.
From a brief search, I can find 2 US schools that grant MD's and 6 that grant DO's have been founded since 1975. I find that number suprisingly low based on the reported demand for new health care workers in the US.
stuart
my political forum