Last week Minnesota’s Senate Commerce & Consumer Protection Committee passed out a law that recognizes a fundamental right to engage in an occupation–any rule or regulation that violates the right would trigger strict scrutiny:
Subd. 2. Right to engage in an occupation.
(a) An individual may engage in a
1.11legal occupation without being subject to statutes, administrative rules, and governmental
1.12policies that regulate the occupation that are arbitrary, unnecessary, or substantially
1.14(b) No government shall require an occupational license, certification, registration,
1.15or other occupational regulation that imposes a substantial burden on the person unless the
1.16government demonstrates that it has a compelling interest in protecting against present and
1.17recognizable harm to the public health and safety, and the regulation is the least restrictive
1.18means to furthering that compelling government interest.
It also provides:
c) An individual who brings an action or asserts a defense under this section has
1.25the initial burden of proof that the statute or administrative rule or a government practice
2.1related to the statute or rule substantially burdens the individual’s right to engage in an
2.2occupation not prohibited by law.
2.3(d) If the individual meets the burden of proof under paragraph (c), the government
2.4must then demonstrate by clear and convincing evidence that the government has a
2.5compelling interest in protecting against present and recognizable harm to the public
2.6health and safety, and the regulation is the least restrictive means for furthering that
2.7compelling governmental interest.
And I especially like this provision, which would provide some insulation (I hope) against rent-seeking, which arises because only the organized special interests tend to testify and lobby on these issues and thereby pepper the record with their self-serving testimony at the expense of consumers:
Subd. 5. Judicial determination. A district court shall liberally construe this
2.11statute to protect the right established in subdivision 2, paragraph (a). A district court
2.12shall make its own findings of fact and conclusions of law. It shall not rely on legislative
2.13findings of fact not presented in admissible form to the district court. It shall not grant any
2.14presumption to legislative determinations of harm to the public health and safety or that
2.15the regulation is the least restrictive means to further a compelling government interest.
Obviously this is just one committee in one house of the Minnesota legislature, so there is a long way to go before this would actually become law. But it is nice that the Minnesota legislature has taken it up and it seems to provide a nice model for similar legislative proposals elsewhere.