Occupational Licensing

Why Occupational Licensing is a Due Process Issue

GMU law scholar David Bernstein on how liberal and conservative judges can find common ground by embracing the right to pursue work.

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Jeff Malet Photography/Newscom

The pursuit of happiness, it seems, does not extend to the pursuit of work.

At least that's been the longstanding view of the U.S. judicial system. Judges have been hesitant to identify a due process right to pursuing a lawful occupation, but the recognition of such a right could go a long way towards curbing occupational licensing and other government-created restrictions on who can do what work.

David Bernstein, a professor at the Antonin Scalia Law School at George Mason University, believes economic freedom can win favor with conservative and (perhaps surprisingly) even more so with liberal judges.

As Bernstein writes in a paper recently published by the Yale Law Journal Forum, there have been just two Supreme Court cases since the New Deal that expressly dealt with this question of whether an individual's right to pursue an occupation is covered by the Due Process Clause of the Fourteenth Amendment. Neither of those two decisions—Williamson v. Lee Optical (1955) and Ferguson v. Skrupa (1963)—should be seen as definitively closing down the possibility of judicial review of occupational licensing laws, or other legislative efforts to restrict employment, Bernstein argues.

In the decades since those rulings, though, the Supreme Court has embraced arguments about substantive due process to uphold so-called "unenumerated rights"—that is, rights not explicitly written into the U.S. Constitution or the Bill of Rights—like the right to an abortion and the right to same-sex marriage.

But the court hasn't thrown the doors wide open. In a 1997 case (Washington V. Glucksburg) where the Supreme Court unanimously rejected a due process argument for the right to commit suicide, Chief Justice William Rehnquist, writing for the majority, outlined when and how the Supreme Court could recognize such unenumerated rights. In order to be recognized as fundamental, Rehnquist wrote, those rights must be "deeply rooted in the Nation's history and tradition."

"The right to pursue an occupation free from arbitrary government action is certainly deeply rooted in American history," argues Bernstein.

In some ways, this is a throwback to an older interpretation of due process rights. The Supreme Court did recognize the right to earn a living in pre-New Deal cases. Meyer v. Nebraska, for example, refers to "the right…to engage in any of the common occupations of life." It's not that the right no longer exists, but that it's now subject to something called rational basis deference, which means it mostly loses in court because judges give legal deference to almost any justification offered by government for restricting occupational freedom.

The U.S. Supreme Court won't get a chance to address that issue this year, but some state courts are warming up to the idea that the Fourteenth Amendment's due process protections can extend to the right to pursue an occupation.

The Texas Supreme Court has gone the farthest so far, with a 2015 ruling in Patel V. Texas Department of Licensing and Regulation that invalidated a state law requiring practitioners of eyebrow threading to obtain a cosmetology license—an expensive and time-consuming process that includes limited, if any, instruction in the actual skills of eyebrow threading. The ruling is significant because the court set a new, higher standard for the government to meet before imposing rules that limit individuals' economic freedom.

Bernstein spoke with Reason about how courts might recognize a right to pursue work. The conversation has been lightly edited for length and clarity:

Photo courtesy David Bernstein

Reason: I think most people would be somewhat surprised to learn that there's no clear-cut constitutional right—not even one that's implied or interpreted by the courts—to having an occupation, even though that seems fairly central to the whole "life, liberty, and the pursuit of happiness" thing. What have the courts said about the right to pursue an occupation as a due process issue?

Bernstein: Since the late 1930s, the Supreme Court has held that economic regulations of any sort, including occupational restrictions, pass constitutional muster so long as the court could think of a rational basis, defined expansively, for the regulation. So there is a right to pursue an occupation, it's just that it will almost never be enforced under the federal constitution because the test the court applies is so deferential to the legislature.

Reason: Occupational licensing laws are something we usually think about as an issue for legislatures. But you argue that courts could play a role here. What would that look like?

Bernstein: At the very least, courts should invalidate occupational restrictions that are justified only by the desire to restrict competition. So far, five federal appellate courts have ruled on that issue, and two of them have held that even gross protectionism to benefit incumbent members of a profession is a valid "rational basis" for an occupational restriction, while three have held it is not.

I would prefer if courts would go a bit further, and require the government to show that it truly had a rational, public-spirited basis for the law it enacted, rather than just requiring that someone at some point in the litigation be able to make up a basis post-hoc.

Reason: You write a lot in this paper about how both liberal and conservative justices have been unwilling to take on the right to an occupation as a due process issue because of fears of "resurrecting Lochner." What should the average person know about the Lochner case, and why are Supreme Court justices on both "sides" scared of it?

Bernstein: Lochner v. New York was a 1905 Supreme Court case that held that New York State could not limit bakers to sixty hours of labor per week because that violated both the bakery workers' and the bakery owners' implicit right to liberty of contract under the Fourteenth Amendment's Due Process Clause. The case is less important for its specific holding than for its symbolic importance, that it represents everything that was wrong with the Supreme Court's jurisprudence before the New Deal.

For liberals, it became a symbol for the notion that courts should allow Congress and state legislatures to engage in economic regulation and experimentation, even if it interferes with what traditionally were considered important economic rights. For conservatives, Lochner demonstrates that courts should be extremely hesitant to enforce any unenumerated rights under the Due Process Clause. Both of these perspectives rely on the notion that Lochner was a uniquely poorly-reasoned case with a uniquely bad practical outcome. In my writings, I've tried to demonstrate that Lochner's flaws have been greatly exaggerated.

Reason: You write that judicial support for the right to pursue an occupation has come historically from the right, but it might find more fertile ground with liberal/progressive justices in the near future. Why is that?

Bernstein: Historically, before the New Deal, the right to pursue an occupation was protected under the Fourteenth Amendment's Due Process Clause. Conservative judges have largely disavowed protecting any rights not specifically mentioned in the Constitution under that clause, for fear of legitimizing a series of liberal "activist" opinions under that clause.

Most notably, conservative don't want to lend any credence to Roe v. Wade, which found a very robust right to abortion under the Due Process Clause, sufficient to overcome the laws of all fifty states and give the U.S. what at the time was the most liberal abortion regime in the world.

Liberals, meanwhile, typically think courts should stay out of controversies over economic regulation. But the right to pursue an occupation could easily be recharacterized as a non-economic right. As one legal scholar has noted, "the choice of occupations reflects and affects "personal capacities, values, style of life, social status, and general life prospects in innumerable ways," and is a vital form of self-expression." The right to pursue an occupation can therefore be reconceptualized by progressives as a personal autonomy right rather than as an economic right.

Reason: We now have a new nominee to fill the vacancy on the Supreme Court. What should we know about Judge Gorsuch's views on this subject? Since he figures to leave the court about where it was, ideologically, when Scalia was on the bench, is that a good thing or a bad thing for the approach you're advocating here?

Bernstein: To my knowledge, Judge Gorsuch has not opined on this issue, beyond general standard conservative rhetoric about how public interest groups should look to achieve their goals in the legislature, not the courts.

Younger conservative jurists tend to be less hostile than the older generation to judicial engagement on economic issues, so Gorsuch's youth–he was born about thirty years after Scalia–is at least a mildly good sign.

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  1. Government licensing should be 100% optional.

    If I had a choice between Doctor/construction person:

    1) no licensing and no peer review

    2) government license

    3) government license/competing civilian licensing with good peer reviews

    I am choosing 3…not fucking complicated.

    1. #1 wouldn’t exist for long, because there will always be enough people willing to pay a small premium for peer reviewed (and/or consumer reviewed) professionals. If I’m looking for a specialist doctor, I’m willing to spend the time and effort to find someone who is board certified and has good reviews from previous patients.

  2. Because the libertarian conservative establishment has ignored the best insights of Tax Honesty, we are far behind on this issue. Even Judge Neapolitan doesn’t seem to understand how the fundamental right to engage in the common ordinary occupations of life precludes being taxed. See http://www.nontaxpayersforronpaul.blogspot.com. The federal courts even the Supremes in NFIBVs Sebelius (Obamacare) in Roberts summation of income taxation history declared the right to tax federally licensed occupations. Why would the courts say this if they had the right to tax ALL occupations? The libertarian conservative establishments refusal to acknowledge that the right to work means the right not to be taxed for the work is a 40 year failure of libertarian principle that is inexcusable. Fortunately Michigan Libertarian Pete Hendrickson has “cracked the code” and thousands have received full refunds of federal and state witholdings sine 2003! See http://www.losthorizons.com...

  3. This effort is our only hope for economic growth.

  4. I am in general agreement with the tenor of this article. Yes, there should be a Due Process right to pursue a job, or at least the courts should give serious consideration to such a right.

    My problem arises from other articles in Reason, ones that are opposed to Roe v. Wade and Obergefell v. Hodges. If there is a Due Process right to pursue a job as a lawyer, doctor, engineer, etc., then why is there not a due process right to marry the person you love or to remove a trespasser from your body?

    Libertarianism fails if we cannot be consistent about something as simple as this.

    Also note that a Due Process right does not guarantee unfettered freedom to pursue a given course of action. If the right is a mere “liberty interest”, then the law need only pass a “rational basis” test: that the lawbears a rationally related a legitimate government interest. But if the right involved is “fundamental” — that is “deeply rooted in American society” — then Strict Scrutiny applies: the law or policy must be justified by a “compelling” government interest, it must be “narrowly tailored” to achieve that goal or interest, and it must be the “least restrictive” means of achieving that interest.

    See “due process clause”, “rational basis review” and “strict scrutiny” in Wikipedia.

    1. The right to remove “a trespasser” from your body? Framing it that way doesn’t work. Trespassers are people, and a person’s right to life trumps [lowercase T] the right to prevent trespassing. Roe v. Wade depends on a fetus not being a person. Anyway, most articles in Reason support that decision, and Obergefell v. Hodges too (to the extent that they support any state involvement in marriage at all), don’t they?

    2. I’ve yet to find the (L)libertarian who does not agree with the right of gays to get married. I’d be really interested to see the reason article that goes against it, unless it is making the case for even further liberalization of the law to allow any marriage and get the state out of the way.

      Good stuff on the legal requirements for challenging licensing laws though.

    3. Section 5 of the 14th Amendment: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

      Can Congress under this provision “enforce” the due process clause by declaring the unfettered freedom to pursuit lawful employment to be a fundamental right deeply rooted in American society?

  5. Just wanted to let Reason and the writers know that I’m really thankful for the numerous articles you’ve written on the occupational licensing issues in this country. My wife was going to start an infant massage business in New York after we moved back to my hometown from Connecticut. In just about any state of the US my wife can do infant massage with the correct certificate- except NY where we live. The rule was only passed a few years back, which resulted in the complete loss of the service in at least a few counties in NY (home to over a million people). It gets more complicated and more clearly a turf war between Occupational Therapists and massage therapists, but I won’t get into the gritty details here. I’m not sure we’d have any winning legal argument based on that alone, however based on these articles we’ve started looking into petitioning the FTC to do something and are going to try to pressure our own state senators and representatives. It is energizing just to know that at least someone is looking into the abuses of these licensing boards.

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