by Jon Riches
April 5, 2018
Major occupational licensing reforms are gaining traction throughout the country. Following Arizona’s enactment of the Right to Earn a Living Act (RTEAL) Act, dozens of states are considering licensing reforms, and at least three states—California, Louisiana, and Colorado—have introduced “cause of action” legislation like RTEAL, which allows individuals the opportunity to meaningfully challenge arbitrary restrictions on their right to earn a living.
The reason for these reforms is simple: The government should not restrict the right to work in the job or profession of a person’s choice absent a compelling health or safety concern. Yet over the last several decades, government restrictions—in the form of occupational licenses and regulations—have made the ability to get a job difficult for everyday Americans. Often these rules are onerous, or nonsensical—requiring thousands of hours of education or training requirements for a profession that does not impact public safety, or that are unrelated to a particular profession.
What’s more, many occupational licensing rules that affect everyday Arizonans are not put in place by elected lawmakers, but rather by state regulatory boards. These boards are comprised of unelected, and essentially unaccountable, members. In addition to a lack of accountability to both the legislature and the executive, decades of bad court decisions have rendered regulations in this area nearly immune from legal challenge in the judiciary. As a result, of all the rights Americans cherish, the freedom to work in the job of one’s choice receives the least protection under the law.
The Right to Earn a Living Act corrects this problem by giving occupational license applicants the presumption that the profession they want to pursue is legal. It requires the government to show some legitimate public harm before a state’s job-seekers can be shut out of a profession. And if a regulation impairs the ability to get a license, the government must prove that it is necessary and carefully tailored to advance the government’s stated interest in public health and safety.
Some critics have argued that the RTEAL Act “delicenses” professions. Not so. The Act does nothing to eliminate existing occupational licenses enacted by the legislature. And it does not, on its own, eliminate any agency regulations. It merely requires that—if challenged—an agency regulation advances a public safety concern.
Others contend that the bill will lead to more litigation. It will not, and in the one place where the RTEAL Act is law—Arizona—it has not. The purpose of the bill is not to increase litigation, but to reduce arbitrary regulation. In Arizona, that is exactly what has occurred. Rather than try to defend irrational regulations, agencies have chosen instead to amend their rules to ensure that they comply with the public health and safety requirements of the law. That said, if agencies persist in imposing arbitrary regulations, the RTEAL Act gives those harmed by the regulations a meaningful path to judicial review that currently does not exist.
A hallmark of American freedom is the right to pursue one’s chosen profession and provide for oneself and one’s family. The RTEAL Act restores the proper balance between freedom and legitimate government regulation.
Legislators in Louisiana, California, and Colorado should move swiftly to enact this bill. And other states should follow suit to ensure that economic opportunity is not merely a promise, but a reality.
Jon Riches is the Director of National Litigation at the Goldwater Institute.