Constitutional Challenges Of Occupational Licensing

One of the most important decisions an individual can make is the type of occupation they choose. Instead of being merely an economic necessity, an occupation is a reflection of an individual’s personality. For example, an artistically inclined individual may choose an occupation that requires, all things being equal, more creativity, such as hair dressing. Despite this, the government has a way of making it difficult for people to follow their passions. Occupational licensing laws are the way that government does this. These laws are government issued permits given once certain educational standards are met. Though, having the right to choose any occupation is not in the constitution, it is seen, however, as a substantive right. Barriers to
Constitutional challenges to these laws rarely succeed, maintains Sanderson. When they are challenged, the court uses rational basis scrutiny, a low standard that usually favors the government (466). This type of scrutiny is so deferential to the government that the court “will often be able to find some non-protectionist policy goal” for even the most blatantly cronyistic licensing scheme (466). Like constitutional challenges, statutory interpretation is ineffective in rolling back these laws (467). Federal oversight over state licensing laws, via the Federal Trade Commission, is not an effective means in ensuring that competition is being inhibited. This is due to state immunity, which does not allow the Federal Trade Commission “to preempt state authorized anticompetitive behavior”
Niely III and Robert J. McNamara in their work “Getting Beyond Guns: Context for the Coming Debate over Privileges or Immunities.” The original purpose of the Fourteenth Amendment, according to its architect, John Bingham, was “to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State” (33). Nonetheless, the Supreme Court, with its decision in Slaughterhouse, disregarded this purpose. Slaughterhouse arose when butchers in Louisiana cried foul when the state passed a law that, in effect, created a state monopoly in butchering (35). After the law passed, the butchers sued, claiming that the law violated the Privileges or Immunities Clause of the Fourteenth Amendment (36). The Supreme Court sided with the state and essentially narrowed the type of rights protected by the Privilege and Immunities Clause (36-37). Protecting “national citizenship,” “the right to use navigable waters of the United States” and “the right to free access to… the subtreasuries, land offices, and courts of justice in the several States” were the only type of rights the Court felt were under the purview of the Immunities Clause