Abolish Occupational Licensing (Part 2)

Originally posted on Quora May 12, 2023

EMTs hold lives in their hands, yet 73 other occupations have greater average licensure burdens: barbers and cosmetologists, home entertainment installers, interior designers, log scalers, manicurists and numerous contractor designations … while the average cosmetologist must complete 386 days of training, the average EMT must complete a mere 34. Even the average tree trimmer must complete more than 16 times the amount of education and experience.

Source: The Atlantic, License To Work

In the USSA, there doesn't seem to be any gig that you can do without needing a team of bureaucrats to sign off on it, however trivial it may be in the grand scheme of 'public safety.' For instance, to install home entertainment systems in Connecticut you have to earn a high school diploma, pay a $185 application fee, pass a test, and work as an apprentice for one year. To legally sell flowers in Louisiana, one has to pay a $189 application fee and pass a florist exam. All 50 states require a license to become a barber. On average, a prospective barber must pay $154 in fees, sit out a year for education, and pass two exams just to legally cut other peoples' hair. Even something as mundane as cutting grass for pay, something teenagers often do for recreational spending, requires a business license in a growing number of cities. The absurdity of occupational licensing laws knows no bounds. As I have reported in previous posts, people have been threatened with fines and sometimes prison for offering dietary advice without the government's permission, teaching makeup without the government's permission, critiquing traffic lights without the government's permission, playing music in a bar without the government's permission, selling teeth whitening products without the government's permission, and selling home cooked meals to neighbors without the government's permission. At this point, a list of jobs you're allowed to do without the government's permission would be much shorter than a list of jobs you need their permission to do. State and local governments, in conjunction with industry licensing boards, are making an ever growing number of services illegal without a government shakedown. This creates barriers for innovation, growth, and self-employment opportunities for the working class. A radical measure is needed to end this insanity: abolish occupational licensing, along with the state licensing boards that implement them and the industry lobbyists that control them. It won't be pretty, initially, but over time we will see how consumers can join together to regulate the quality of the services they provide. The first conception may be rating systems specific to certain kinds of services, and this may evolve into private credentialing over time. Eliminating the rigid top down structure of licensing boards would open up multiple avenues for keeping proprietors honest and competent without creating burdensome hurdles for honest and competent people trying to become proprietors.

Occupational Licensing Violates the Dormant Commerce Clause By Erecting Interstate Trade Barriers

In the wake of an estimated $57 billion in damages caused by hurricane Ian last year, a shortage of licensed contractors within the state prompted out of state competition to pick up the slack. Such was the case for Terence Duque, owner of Duque’s roofing who is a licensed contractor in the states of Texas and Louisiana and has been accredited by the Better Business Bureau since 2010. Duque decided to look for work in Florida after he heard about an emergency order from governor Desantis allowing out-of-state contractors to work in Florida. Unbeknownst to him, out of state contractors still had to apply for a license with the Dept. of Business & Professional Regulation and wait for permission to begin repairing homes. The absurdity of the regulation and his subsequent arrest is obvious to anyone not brainwashed in blind obedience to bureaucratic machinations. Duque’s documented qualifications and reputation for his line of work do not cease to exist just because he crossed a state border. If instead of a new license the Florida bureaucracy required only a professional reference or legal documentation from the analogous bureaucracies in the two states Duque is licensed in they might have a leg to stand on, but instead the demanded a whole new shakedown invalidating their argument about protecting Florida residents from fraud and subpar repairs. Of course, the absurdity of prohibiting entrepreneurs licensed to sell their services in one state from selling them in another state also appears to be a violation of the dormant commerce clause (Article 1 section 8 clause 3) that gives congress the sole power to regulate commerce ‘among the several states’ and as SCOTUS has interpreted it in several cases, to prohibit state laws from unduly restricting interstate commerce i.e. restrict or prohibit goods and services from out of state. For instance in the 1935 case of Baldwin v. G.A.F. Seelig SCOTUS held that the commerce clause has a two fold purpose: 1) to give congress the authority to enact uniform regulation across the country and 2) to prevent states from discriminating against products and businesses outside their locale.

The purposes of the commerce clause are two. The one originally of greater importance was to prevent discrimination by the several States, each designing to favor its own products and the local businesses of its citizens. The other, which has become of constantly increasing importance in recent years, is to authorize Congress to give interstate commerce a uniform regulation.

SCOTUS has affirmed this precedent over the past century. For instance in Hood & Sons v. Du Mond the court held that states may not curtail interstate commerce to promote their own economic advantages. As recently as 2019, SCOTUS held that states cannot impose durational residency requirements as a condition of obtaining or renewing a retail license in Tenn. Wine & Spirits Retailers Association v. Thomas. The same logic should be applicable to personal services. I should be able to hire a barber licensed in Mississippi to cut my hair across the border in Louisiana. In either state his qualifications, experience, and reputation are the same; the only difference is the imposition of the state board that refuses to recognize permission slips from other state boards. The same should hold true if I wanted to hire a florist from another state to make a floral design in the only state (Louisiana) that requires florists to have an occupational license. The possibility that an out of state florist could be arrested, tried and convicted for providing their services to a Louisiana resident simply because they do not have the requisite state license is arbitrary and capricious on its face. These are but two examples of many in which occupational licensing could be used to discriminate against out of state entrepreneurs thus violating the commerce clause.