Title: Is Economic Exclusion a Legitimate State Interest? Four Recent Cases Test the Boundaries
Abstract: INTRODUCTION For most people, economic opportunity defines the American Dream.1 For centuries, immigrants have struggled to reach the United States for a chance to find a better job or open a business to support themselves and their families. Within the United States, Americans have fought to lower barriers, such as racism and sexism, that stand in the way of economic opportunity. Yet many barriers remain. In particular, government regulation has often overwhelmed the right to earn an honest living. Although these regulations are promulgated in the name of public safety and welfare, they often bar the door of opportunity and protect, not the public, but the private interest of established firms seeking to prevent competition from entrepreneurs.2 Unfortunately, while previous generations saw economic freedom as a vital constitutional right,3 since the 1930s, economic regulations, including occupational licensing laws, have greatly restricted this freedom. The regulations have been reviewed by courts under the basis test, a test so lenient that virtually no law can fail it.4 Nevertheless, even under this deferential regime, courts have occasionally declared that the Constitution limits the degree to which states may erect barriers to entry into the job market.5 For example, in Schware v. Board of Bar Examiners,6 the Supreme Court held that the Due Process Clause requires occupational licensing laws to have some rational connection with the applicant's fitness or capacity to practice the profession.7 This is consistent with the Supreme Court's repeated holding that the basis test, while very deferential, still requires laws to have some ? ublic justification, rather than being based on mere animus8 or the desire to benefit a particular constituency.9 In four recent cases, federal courts have been confronted with the issue of whether regulations designed for no other purpose than to protect political insiders from fair economic competition meet the standards of the Fourteenth Amendment. Most notably, in Powers v. Harris,10 the Tenth Circuit Court of Appeals upheld an occupational licensing requirement even while acknowledging that it was solely intended to protect established companies against competition - that is, even where the law had no public justification behind it.11 [I]ntrastate economic protectionism, the court declared, constitutes a legitimate state interest.12 This is the most disastrous case for economic freedom in over seventy years.13 Yet, despite a clear conflict between it and the decision of the Sixth Circuit Court of Appeals in a virtually identical case,14 the Supreme Court recently declined to address the issue.15 As a result, constitutional protection for economic opportunity remains in serious danger. That danger is further exemplified by Sagana v. Tenorio,16 a recent Ninth Circuit decision affirming the explicitly discriminatory labor laws of the Northern Mariana Islands on the grounds that protecting some laborers against competition from others is a legitimate state interest under the Fourteenth Amendment. Two recent trial court decisions - Merrifield v. Lockyer11 and Meadows v. OdomiS - explore these themes further by evaluating the constitutionality of occupational licensing laws that lack any serious public-regarding justification. In this article, I explain why mere economic protectionism is not a legitimate state interest, and why courts must revive the common sense limits on government' s authority to grant pure political favors to economic interest groups. In doing so, I focus on these four recent cases. Part I briefly describes the history of occupational licensing. Part ? gives a history and overview of the Powers case. In Part HI, I discuss the principles that establish why economic protectionism violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Part IV puts these principles into concrete formby examining cases in which labor laws discriminating against immigrants have been held unconstitutional - and the Sagana case, which ignored such precedents. …
Publication Year: 2006
Publication Date: 2006-02-01
Language: en
Type: article
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