Related Reforms Posted on March 21, 2017 | Op-Ed

SB1437: Right to Earn a Living moves to the House floor with broad support

GOLDWATER POLICY UPDATE

One of the problems with occupational licensing decisions is that government regulators are not held accountable when they interfere with someone’s right to enter a lawful occupation.  The reason for this is because, over the years, courts have relegated the right to earn a living to second class status.  That is, while some rights, like the right to free speech, receive meaningful judicial protection, rights involving economic freedom, like occupational licensing decisions, do not.  When decisions by occupational licensing boards are made, courts almost always defer to those agencies, requiring those who have been harmed by those decisions to meet an extraordinarily high burden to get relief. 

SB 1437, headed to the House Floor this week, corrects this problem.  It is based on a simple premise: The burden of proving that government restrictions on free enterprise are excessive should not be placed on those who want to earn an honest living; instead regulators should bear the burden of justifying their restrictions.

It would help individuals like Juan Carlos Montesdeoca.  Juan Carlos is a cosmetology student In Tucson, Arizona.  He decided to spend his time outside of school cutting the hair of homeless people near a local public library.  Rather than commend an individual who was putting his training to charitable use, the Arizona Board of Cosmetology launched an investigation, threatening Juan Carlos’s ability to ever get a license to cut hair in the state.

In this case, sanity prevailed, however only after the Governor intervened, the Board backed off.  But, had this case gone to court, Juan Carlos would have faced significant obstacles.  If SB1437 was the law, his path to earn an honest living, or engage in charitable work, would be more assured.   

It has been suggested that this bill would allow unlicensed practitioners into the workforce.  This is incorrect.  This bill does nothing to remove licensing of existing professions or licensing requirements on those professions.  It simply directs courts to examine more carefully regulations that impair the ability to earn a living. 

Some have also asked whether this legislation would lower health and safety standards.  No.  In fact, this legislation specifically allows for occupational regulations that promote “public health, safety or welfare.”  If an occupational regulation does not advance one of these government interests, and is imposed to, for example, protect existing businesses, then this legislation would protect those job-seekers.

Another question that has come up is whether this legislation would result in increased litigation.  That is unlikely.  Already anyone harmed by an occupational licensing decision can challenge that decision in court.  This legislation simply tells the courts to take those cases seriously.  What’s more, once regulators know they will be accountable for their decisions, there will be fewer arbitrary regulatory actions, and therefore less litigation.  

Finally, some have asked whether this legislation would limit legislative authority.  The opposite is true.  This legislation allows individuals who have been harmed by a regulatory decision that has no basis in law to have that decision reviewed by the Governor’s Regulatory Review Council.  In this way, it reiterates and strengthens legislative authority over arbitrary regulatory action.

The right to earn a living is a fundamental right.  It deserves the same protection other rights receive.  This bill would help ensure all of us are freer to work in the field of our choice.

 

Author

Jon Riches is the Director of National Litigation for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and General Counsel for the Institute. He litigates in federal and state trial ... Read

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