Examining the Right to Earn a Living Act, part 10

Once the licensing agency has officially stated its reasons for any particular entry regulation or public service restriction, affected members of the public need a mechanism to challenge it. The next step of the Right to Earn a Living Act addresses that need.

Section 7. {Administrative proceedings}.

(A) Any person may petition any agency to repeal or modify any entry regulation into a business or profession within its jurisdiction.

(B) Within 90 days of a petition filed under (A) above, the agency shall either repeal the entry regulation, modify the regulation to achieve the standard set forth in Section 4, or state the basis on which it concludes the regulation conforms with the standard set forth in Section 4.

(C) Any person may petition any agency to repeal or modify a public service restriction within its jurisdiction.

(D) Within 90 days of a petition filed under (C) above, the agency shall state the basis on which it concludes the public service restriction conforms with the standard set forth in Section 5.

In short, anyone seeking repeal or change of a licensing agency’s entry regulation (which affect individual workers) or public service restrictions (which affect individual enterprises) would first have to ask the agency. The agency would then have 90 days to give an answer. That answer would have to be one of three responses:

  1. Repeal of the regulation in question
  2. Changing the regulation to conform to the act’s requirement it be “limited to those demonstrably necessary and carefully tailored to fulfill legitimate public health, safety, or welfare objectives”
  3. Tell why the regulation already conforms to that requirement and therefore doesn’t needs to change

In the case of public service restrictions, the act only requires telling why the restriction conforms to the act’s requirement it be “limited to those demonstrably necessary and carefully tailored to fulfill legitimate public health, safety, or welfare objectives” and doesn’t need to be changed.

Court challenges

What if someone is unsatisfied with the agency’s response and wishes to pursue it further? Here is what the act would set forth concerning a court challenge against the regulation or restriction:

Section 8. {Enforcement.}

(A) Any time after 90 days following a petition filed pursuant to Section 6 that has not been favorably acted upon by the agency, the person(s) filing a petition challenging an entry regulation or public service restriction may file an action in a Court of general jurisdiction.

(B) With respect to the challenge of an entry regulation, the plaintiff(s) shall prevail if the Court finds by a preponderance of evidence that the challenged entry regulation on its face or in its effect burdens the creation of a business, the entry of a business into a particular market, or entry into a profession or occupation; and either
(1) That the challenged entry regulation is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety, or welfare objectives; or
(2) Where the challenged entry regulation is necessary to the legitimate public health, safety, or welfare objectives, such objectives can be effectively served by regulations less burdensome to economic opportunity.

(C) With respect to the challenge of a public service restriction, the plaintiff(s) shall prevail if the court finds by a preponderance of the evidence that on its face or in its effect either:
(1) That the challenged public service restriction is not demonstrably necessary and carefully tailored to fulfill legitimate public health, safety or welfare objectives; or
(2) Where the challenged public service restriction is necessary to fulfill legitimate public health, safety or welfare objectives, such objectives can be effectively served by restrictions that allow greater private participation.

(D) Upon a finding for the plaintiff(s), the Court shall enjoin further enforcement of the challenged entry regulation or public service restriction, and shall award reasonable attorney’s fees and costs to the plaintiff(s).

These demonstrate the importance of those terms already discussed: demonstrably necessary, carefully tailored, legitimate.

The act then adds an extra hurdle: even all of that still wouldn’t be sufficient to justify the regulation or restriction if the same necessary, legitimate state purpose could be met effectively with lesser state intervention. Can the state accomplish its purposes effectively while allowing more freedom and imposing fewer burdens on economic opportunity?

This is the proper approach to regulation in general. After all, there’s no need to reach for a nail gun when a pushpin will do.

Those terms provide the guidelines for the courts to review the licensing agency’s regulation or restriction before them. The act then tells the courts which standard of evidence they should use to evaluate it: a preponderance of evidence that it burdens economic opportunity, whether on its face or in its effects.

Preponderance of evidence is the easiest standard for the plaintiff to meet. In effect it means the regulation or restriction will be overturned if the courts deem the plaintiff’s challenge more likely to be true than not.

If the courts do rule for the plaintiff, the licensing agency will be legally prevented from enforcing its entry regulation or public service restriction. It will also have to pay the plaintiff’s attorney’s fees and costs.

There remains one last piece of the Right to Earn a Living Act: what to do about local licensing laws? The final installment in this series looks at that.


Posts examining the Right to Earn a Living Act:

Part 1: A fundamental civil right
Part 2: A well-known path up from poverty
Part 3: Legitimate vs. arbitrary regulation
Part 4: Fewer jobs, higher prices
Part 5: Greater burden for poor workers and consumers
Part 6: Three main objectives
Part 7: Defining the terms
Part 8: A very high bar
Part 9:  Defending the decision to license
Part 10: Challenging the decision to license
Epilogue: Securing rights on the local level, too

Jon Sanders / Director of Regulatory Studies

Jon Sanders studies regulatory policy, a veritable kudzu of invasive government and unintended consequences. As director of regulatory studies at the John Locke Foundation, Jo...

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