THE (LIMITED) CONSTITUTIONAL RIGHT TO COMPETE IN AN OCCUPATION.

• Author: Allensworth, Rebecca Haw
• Position: Special Issue on Antitrust Law

TABLE OF CONTENTS INTRODUCTION 1114 I. THE CURRENT STATE OF OCCUPATIONAL LICENSING 1116 UNDER THE CONSTITUTION A. Fourteenth Amendment Challenges 1116 B. First Amendment Challenges 1123 C. A Constitutional Right to Earn a Living? 1127 II. THE FUTURE OF OCCUPATIONAL RIGHTS UNDER THE 1130 CONSTITUTION A. Rationality Review and the Circuit Split 1130 1. Naked Preferences and Economic Protectionism 1131 2. Are Weaker Rights Against Economic Regulation 1134 Justified? 3. The Supreme Court and Economic Rights Under the 1137 Fourteenth Amendment B. The First Amendment and Professional Speech 1138 1. Locating Professional Speech in the First Amendment 1139 Framework 2. Content-Neutral? Conduct not Speech? Or a New 1143 Category of Speech? CONCLUSION: THE FUTURE OF THE "RIGHT TO EARN A LIVING" 1145 MOVEMENT INTRODUCTION

Braden Boucek knew the type and so would anyone who has seen a schoolyard bully at work. (1) Boucek watched the attorney for the Tennessee Board of Cosmetology and Barber Examiners preside over a disciplinary hearing where a handful of unlicensed barbers--almost all lacking representation by a lawyer--would lose their livelihoods. (2) The case that caught his attention was that of Elias Zarate, who told the board that he was sorry that he cut hair without the State's approval, but he was grateful for the board's invitation to the hearing today to help him get a license, especially since his Memphis barber shop was his only means of supporting himself and his baby daughter. (3) The board's attorney explained there would be no help with a license and Zarate owed $2,100 in fines, including a charge for the board lawyer's time. (4)

To Boucek, a leading attorney in the movement to challenge unjust licensing laws in the courts, this case fit within the typical pattern of disciplinary hearings before licensing boards--if you have a lawyer, you win, if you don't, you lose. (5) It seemed to Boucek the boards do not like an even playing field. (8) So it did not surprise Boucek--who was at the hearing representing someone else--that Zarate lost his hearing, which lasted all of five minutes. (7) What struck Boucek was a detail that Zarate shared when explaining his story: Zarate had never graduated from high school. (8) Boucek watched as Zarate approached a board staff member to ask how to pay the fee and what, if anything, he could do to legally pursue his profession. (9) When the staff member explained that Elias should enroll in barber school, Boucek could not remain silent. (10) He advised Zarate that he should not let the board further deceive him. (11) Zarate could spend over a year in school, incur $20,000 in debt, and still not be allowed to cut hair. (12) Tennessee law bars all high-school dropouts from barbering. (13) Boucek had hoped to challenge the law in court once he found the right plaintiff. (14)

Elias's case against the State of Tennessee is part of a national movement to invalidate unfair licensing requirements under the Constitution by convincing courts to recognize a constitutional "right to earn a living." (15) The movement is led by lawyers such as Boucek who share a commitment to libertarian values that chafe at the idea of needing a government's permission to work. (16) By far, the largest share of these cases is brought by the Institute for Justice (IJ), a public interest law firm dedicated to vindicating libertarian causes in court. (17) But smaller firms, such as Boucek's Beacon Center in Tennessee, are important contributors. These firms all rely on private donations, because these suits primarily seek injunctive relief rather than damages. And while attorney's fees are awarded in successful cases, winning a judgment is rare. (18)

But is there a constitutional right to compete in an occupation? Lawyers such as Braden Boucek and his colleagues at the IJ will tell you that there is, and that it is no less important than the other rights enshrined in the Constitution, such as religious liberty and the right against self-incrimination. (19) The law on the ground, however, might suggest otherwise. There certainly is a constitutional law of occupational licensing, and the pioneering work of the "right to earn a living" movement has helped define its contours and expand it in some important ways. (20) But the constitutional protections offered to plaintiffs such as Elias Zarate have always been limited, and will likely continue to be so.

1. THE CURRENT STATE OF OCCUPATIONAL LICENSING UNDER THE CONSTITUTION

   The U.S. Constitution makes no mention of a right to earn a living, or of a right to engage in an occupation. (21) But attorneys such as Boucek have two main constitutional tools in their kit when challenging an overly burdensome licensing restriction. First, Braden can make claims for his clients under the Fourteenth Amendment. (22) Licensing laws may run afoul of either the provision guaranteeing due process or the provision that assures equal protection under the law. (23) Because the legal inquiry is almost identical under those two provisions, they are often conflated in the cases themselves. (24) These provisions are discussed together in Part I.A. Second, if the profession involves speech, Boucek can make a claim on behalf of his client under the First Amendment, claiming that the licensing restriction infringes free speech rights. (25) Those claims are discussed in Part I.B.

   1. Fourteenth Amendment Challenges

      The Fourteenth Amendment guarantees a right to "due process of law," (26) a vague phrase that the Supreme Court has, over the years, interpreted to protect workers from irrational occupational regulations. (27) Initially, constitutional "due process" meant only that the laws would be applied to individuals through processes that were fair and transparent. (28) Today, this set of protections is referred to as "procedural due process," distinguished from a more controversial set of protections that became known in the early twentieth century as "substantive due process." (29) To the extent there is a due process right to compete in an occupation, it is found in the complex and controversial substantive due process doctrine.

      The substantive due process doctrine holds that there are constitutionally protected rights that go beyond those expressly listed in the text of the Constitution. (30) A legislature--whether state or federal--cannot make laws that infringe upon these "unenumerated" rights unless there is a legitimate health and safety concern that the law addresses. (31) Today, perhaps the most well-known of these unenumerated rights is the right to privacy, which includes the right to same-sex marriage (32) and the (limited) right to abortion. (33) Early last century, the Supreme Court recognized another right under the due process clause--the right to freedom of contract--and infamously used it to invalidate a state law regulating an occupation. (34)

      In 1905, the Supreme Court decided Lochner v. New York, (35) one of the most maligned Supreme Court cases in American history. The case challenged the constitutionality of a New York law limiting the hours bakers could work. (36) The State argued that the statute protected bakers' health, but the Court held that the Due Process Clause of the Fourteenth Amendment prevented states from limiting workers' freedom of contract without a more compelling health and safety justification. (37) The Court explained that if bakers' health were reason enough to limit working hours, then state legislatures could regulate any occupation in any way they saw fit:

      No trade, no occupation, no mode of earning one's living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. (38) If Lochner were still good law, it is easy to see how its language could be used as a powerful tool against excessive occupational licensing. This passage suggests that there is a constitutional right to earn a living, and that the Due Process Clause can be used to invalidate state occupational regulation that goes too far in limiting that right.

      But Lochner and the substantive due process right to liberty of contract have not withstood the test of time. (39) Even in 1905, the opinion in Lochner was controversial; Justice Holmes dissented from the opinion, saying that the case was "decided upon an economic theory which a large part of the country does not entertain," and that it was not for the Justices to substitute their economic judgment for a legislature's. (40) That criticism of Lochner became especially important during the New Deal era, when the federal government passed sweeping--and popular--economic regulation that reached far into the economic life of the country. (41) New Deal legislation would almost certainly have been invalidated by the Supreme Court Justices that had decided Lochner. (42)

      By the time many of the New Deal laws came before the Court, however, the Justices controlling its decisions were hostile to Lochner and the economic rights it espoused. (43) In part, that was because the Justices saw the need for regulatory flexibility in the face of the Great Depression. (44) Their change of heart may also have been because of a threat made by President Roosevelt. (45) When it became clear that the Court would use substantive due process to invalidate President Roosevelt's New Deal, the President claimed that he would respond by "packing" the Court with up to six new members for a total of fifteen seats. (46) These new members would be hand-selected by Roosevelt and would therefore be friendly to New Deal legislation and adverse to cases such as Lochner that threatened it. (47) In the end, one Justice relented. (48) Even though the President's threat may not have been the most important reason for the change of heart, (49) the episode is still...