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State Courts Can Remove These Barriers to Work Opportunities

Dec. 5, 2022, 9:00 AM

For many lower-income workers, the legal system fails to enforce some of their constitutional liberties. Thankfully, though, there are some signs of hope in the court system. The newest victory could come in Georgia.

In the 1950s only about one in 20 workers needed a license for her job. Today it’s closer to one in four. These licenses often have little to do with protecting the public and instead are meant to fence out the competition.

My colleagues at the Institute for Justice have just published a nationwide report that examines licenses for 102 lower-income occupations. These aren’t jobs like a surgeon’s where someone’s heart beats in your hand, but rather ordinary jobs practiced by ordinary people, from barbers to construction contractors to florists.

Even though these positions are unlikely to make people rich, and public safety is rarely at risk, the barriers to entry can be staggering. For example, becoming a makeup artist takes an average of 128 days of training—that’s six months of full-time school and thousands of dollars in tuition.

Tellingly, only a handful of these occupations are licensed in every state, and many are licensed in only a few states. Yet research finds little difference in quality or safety from licensing or from stricter licensing. There is evidence, however, of higher prices and fewer opportunities.

The report has some good news. Since a previous edition five years ago, some states have eliminated a few licenses. And about 20% of licenses have become less burdensome.

But there are so many unnecessary barriers that remain. So outside of these important, but glacial, reforms, where can entrepreneurs turn for help?

Remedy in State Courts

You’d think the answer would be the US Supreme Court. However, the nation’s highest judicial authority is hostile to the right to earn a living, as with many other rights, and has been for a long time.

Unless a law has no “rational relationship” to a legitimate governmental interest, the Supreme Court says most barriers to your earning a living are perfectly constitutional .

With this judicial abdication, the US Constitution is of almost no use when lawmakers license your calling away. For example, the court has said it is fine to require you to see an eye doctor every time you get a new pair of glasses, even though there’s no evidence the legislature cares about your health and plenty it cares about limiting competition.

Where else can working Americans turn? To their other constitution, the constitution of their state.

Every state has a constitution, and every one of those 50 documents has its own Bill of Rights—often written more expansively than the US version. They’ve been interpreted by state courts to protect many liberties forgotten at the federal level, including the right to earn a living. But only sometimes, and only in some places.

Georgia Lawsuit

Luckily for Mary Jackson, one of those places is Georgia.

Jackson is a champion of babies—and of mothers breastfeeding their babies. For years she has worked as a lactation counselor, helping new mothers at a critical moment in their lives.

She doesn’t give medical advice or diagnose illnesses. She just makes a living helping mothers and babies thrive, and so do hundreds of other Georgia women like her.

That’s all at risk, though, because after intense pressure from a special interest group, the state legislature adopted a license found nowhere else in the country. It requires almost two years of college training, plus fees and an exam, to give lactation advice.

Very few existing counselors, including Mary, have these overbroad and expensive qualifications. To make things worse, workers in some other occupations—including chiropractors and dietitians—are exempt and can provide lactation advice.

Jackson and a coalition of women sued, arguing that the law violates the Georgia Constitution. And so far, they’ve won.

After a preliminary ruling at the Supreme Court of Georgia , the trial court found in their favor. The case is now back at the state high court, to be argued on Dec. 6, 2022. A ruling for Jackson could reverberate to other states and their numerous licenses to work.

If the American Dream has a future, courts like those in Georgia—and hopefully one day in Washington, D.C.—must exercise their own calling and protect those of everyone else.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Author Information

Anthony Sanders is director of the Center for Judicial Engagement at the Institute for Justice, which represents Mary Jackson and her coalition before the Supreme Court of Georgia.