Obtaining a job in a professional field presents additional intricacies. The path towards professional employment is often locked behind state occupational licensing schemes, as doctors, lawyers, pharmacists, and more all must obtain state licenses before they can lawfully practice.[8] State licensing schemes exist in large part to protect the public by ensuring that only qualified individuals can provide relevant services.[9] Nevertheless, overly restrictive requirements can operate as barriers to entry.[10] Individuals seeking to challenge these barriers may raise substantive due process arguments (i.e., arguments that the government is not justified in interfering with life, liberty, or property interests),[11] alleging that overly burdensome requirements infringe the “right to work” protected by the Fourteenth Amendment to the U.S. Constitution.[12]

As discussed in Part I, federal right to work jurisprudence has been largely dead on arrival in the United States Supreme Court since the Lochner era.[13] In 1905’s Lochner v. New York, the Supreme Court struck down a New York law limiting working hours for bakers, concluding that the law interfered with the freedom of contract protected by the due process clause of the Fourteenth Amendment.[14] This substantive due process right relating to economic liberties (economic due process or “EDP”) was used by the Court throughout the Lochner era (1897–1937) to limit laws or regulations infringing economic freedoms.[15] The end of the Lochner era was a clear victory for public health: during that period, the Court had invalidated “nearly two hundred social welfare and regulatory measures” in the span of a few brief decades.[16]

Federal and state approaches to EDP have evolved irregularly in the jurisprudential vacuum left after the Lochner era closed. As discussed in Part II, federal circuit courts are split in their approaches to EDP claims, and cases with similar facts reach opposing outcomes.[17] Perhaps because of the lack of uniformity or clarity in the federal approach, litigants may be turning to state, rather than federal, resolution. State supreme courts have increasingly concluded that a substantive due process “right to work,” housed in state constitutional due process clauses, can invalidate unduly burdensome regulations.[18]

As discussed in Part III, Coronavirus-19 (“COVID-19”), a highly transmissible communicable disease which plunged the world into a global pandemic in 2020–21,[19] has raised the stakes. As states enacted executive orders to shutter businesses and protect the public, business owners sued, arguing that the orders denied various EDP rights, including the right to work, operate a business, or earn a living.[20] As more and more orders are challenged and initial determinations appealed, it becomes more likely that one or more of these cases will reach the United States Supreme Court. Whether or not the Court will choose to take on one of these cases is another matter.

The makeup of the current Court represents an important consideration. The confirmation of Justice Amy Coney Barrett on October 26, 2020, has resulted in a conservative super-majority.[21] This makeup could have important impacts on both the Court’s willingness to take up these cases, as well as the ultimate outcome, as certain late stage Lochner-era decisions were driven largely by a voting bloc of four conservative Justices known as the “Four Horsemen.”[22] Given these circumstances, and the increase in attention to EDP arguments of late, the Supreme Court is more likely than ever to revisit EDP arguments and re-evaluate its approach to the Fourteenth Amendment’s “right to work.” Whether the Court decides to shift course could certainly impact right to work arguments with respect to both occupational licensing and state abilities to enact social distancing measures during emergencies. The Court must tread carefully, as a full return to Lochner-era principles would do untold damage to public health.                                                                                                                       

I.         The Rise and Fall of Lochner

EDP arguments began to gain traction in constitutional jurisprudence more than 120 years ago in 1897’s Allgeyer v. Louisiana. In striking down a Louisiana statute requiring individuals and corporations to deal only with marine insurance companies that complied with Louisiana law,[23] the Court reasoned that the “liberty” protected by the Fourteenth Amendment’s Due Process Clause encompassed economic liberty:

The “liberty” mentioned in that amendment . . . is deemed to embrace the right of the citizen to b[e] free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation . . . .[24]

Allgeyer’s reasoning and language clearly conceptualized a constitutional right to pursue one’s calling.[25] Nevertheless, the decision remained consistent with a previous determination that such a right could reasonably be limited by licensing regulation aimed at the protection of public welfare.[26]

The Court’s embrace of laissez-faire economic principles drove fuurther development of EDP jurisprudence for the next several decades. In the era’s namesake case, Lochner v. New York, the Court invalidated working hour limits for bakers as violating the freedom of contract.[27] The law at issue (the “Bakeshop Act”) could survive only if it represented a “fair, reasonable, and appropriate exercise of the police power of the state.”[28] This specific language may sound akin to rational basis scrutiny, a deferential standard by which a law will be upheld “if it is rationally related to a legitimate government purpose.”[29] The comparison to rational basis scrutiny, however, ends there. Indeed, the Court could not have been applying rational basis scrutiny—the traditional tiers of scrutiny did not exist at the time Lochner was decided.[30]

Even in the absence of the traditional tiers of scrutiny, it is clear the Lochner Court was not applying a deferential standard. Rather, Lochner’s language reveals that the Court was highly suspicious of the Bakeshop Act, searching for a heightened level of justification.[31] The opinion takes great pains to explain that the occupation of baking was not considered “an unhealthy one,” and that any and all trades could arguably affect health, but that is not a sufficient reason to support state interference.[32] In sum, Lochner rested on its express determination that the Bakeshop Act could not be characterized as a health law, and therefore could not be supported as a valid exercise of state police power.[33]

Despite the Court’s penetrating review, in the public health context, the Court’s reasoning was invalid. Scholarship has since demonstrated that the Bakeshop Act contained sanitation requirements and was meant to limit health complications faced by bakers, including “a frequently fatal ill-health experience characterized by, inter alia, fever, shortness of breath, pallor, expectoration of blood, and a progressive wasting away of the body.”[34] Even without considering the specific risks to bakers at that time, the U.S. Occupational Safety and Health Administration today acknowledges that work shifts extending beyond eight hours a day, five days a week with at least an eight-hour rest are considered “extended or unusual” and can lead to fatigue, stress, injuries, and accidents.[35] Simply put, the Bakeshop Act was, indeed, a health law.

For the benefit of additional health laws across the nation, the Lochner line of jurisprudence came to a screeching halt in 1937 when a change in vote by Justice Owen Roberts effectively ended the era in West Coast Hotel Co. v. Parrish.[36] With Justice Roberts casting the deciding vote, the Court reversed course and upheld a Washington law setting a minimum wage for women.[37] This decision expressly erased the “freedom of contract” on the basis that there was no such freedom enshrined in the Constitution.[38]

The West Coast Hotel Court thus firmly cemented a new, deferential approach to economic regulation, but two additional decisions, Ferguson v. Skrupa and Williamson v. Lee Optical of Oklahoma, Inc., finally and fully sounded the death knell for the constitutional “right to work,” at least as protected by the federal Constitution.[39] At issue in Williamson was an Oklahoma law only allowing licensed optometrists or ophthalmologists to fit eyeglass lenses.[40] Reasoning that these kinds of decisions fall to the legislature, rather than to courts, the Court upheld the law, even though it likely imposed a “needless, wasteful requirement in many cases.”[41] Finally, in Ferguson, the Court upheld a Kansas statute making it illegal to operate as a debt collector, except as incident to the practice of law.[42] In a succinct, unanimous decision, and despite the clear interference with the Lochner era’s “freedom of contract,” the law passed muster.[43]

These decisions signaled a new era in which the Court would defer to state legislatures and avoid using the Due Process Clause to nullify economic regulation. Since 1937, the Court has adhered unwaveringly to this approach—not since the Lochner era has the Court invalidated an economic law or regulation on substantive due process grounds.[44] In the resulting vacuum, federal circuit courts of appeal have interpreted the Court’s jurisprudence, at times reaching irreconcilable results.                                                             

II.         Current Federal and State Approaches to Economic Due Process

In Lochner’s absence, governmental agencies have enacted regulations that may have been found contrary to the “freedom of contract” in the early 20^th century, including certain licensing requirements promulgated to protect public health and safety. While these kinds of regulations clearly benefit public health in a general sense, some of the more burdensome of these requirements can create barriers to entry that may hinder certain individuals on the path to professional employment. For example, Louisiana is currently the only state to require an occupational license for florists.[45] Obtaining that license at one point required passage of a subjective practical exam with passage rates below 50 percent, during which applicants would arrange four bouquets in four hours.[46] This requirement has been done away with, but while it was in place, at least one woman failed the test five times, lost her job as a grocery store florist, and perished in poverty.[47]

Federal courts do not generally provide a uniform answer to this conundrum. Since 1937, federal courts assessing EDP arguments have applied rational basis scrutiny,[48] but in the absence of additional guidance from the Supreme Court post-Lochner, circuits have approached this review in distinct ways.

The first means of approach is a rational basis review with no bite. Both the Second Circuit Court of Appeals and the Tenth Circuit Court of Appeals have concluded that economic protectionism—i.e., benefiting one group over another purely for economic reasons—satisfies rational basis scrutiny in these cases.[49] Specifically, in 2004, the Tenth Circuit upheld a licensing scheme limiting the sale of caskets in Oklahoma to licensed funeral directors, concluding that intra-state economic protectionism was a sufficient interest to satisfy rational basis review.[50] More recently, the Second Circuit in 2015 upheld a Connecticut dental regulation providing that, during a teeth-whitening procedure, only a licensed dentist could shine a light emitting diode on a customer’s teeth.[51] In expressly determining that economic protectionism is rational for purposes of EDP analysis, the court explained, “[m]uch of what states do is to favor certain groups over others on economic grounds. We call this politics.”[52]

This justification is not sufficient in all circuits. Indeed, under the second approach to EDP analysis, several other circuits have expressly concluded precisely the opposite—that economic protectionism is not sufficient to satisfy rational basis scrutiny.[53] Thus, whether states can use a theory of economic protectionism in designing occupational licensing restrictions largely depends on which federal circuit decides the case.

An approach that legitimizes economic protectionism indicates that rational basis review operates as a mere formality. Validating economic protectionism in this way could very well result in additional anecdotes like the Louisiana grocery store florist. Those seeking professional employment should not have to face unnecessarily burdensome and costly barriers. Differentiating between regulations that protect the public’s health, and regulations that provide only profit, allows for invalidation of the latter alongside preservation of the former. This kind of differentiation is a necessary step towards achieving equity.

EDP arguments, taken up to a certain point, could help to invalidate some of these unduly burdensome requirements while still preserving those that truly serve to protect public health. Yet court determinations upholding economic protectionism eliminate EDP as a viable constitutional option. Perhaps because of this, individuals making these arguments have focused in on a different source for EDP analysis: state constitutions.

Certain state supreme courts have begun to strike down some particularly burdensome regulatory requirements based on state constitutional due process guarantees. In 2015, the Texas Supreme Court struck down a requirement that commercial eyebrow threaders, who use thread to remove excess eyebrow hair, obtain esthetician licenses to practice threading.[54] The particular license required a minimum of 750 hours of approved training and passage of a mandated exam.[55] Texas’ Department of Licensing and Regulation conceded that almost half of these hours were inapplicable to the work performed by threaders.[56] This requirement was too onerous, without sufficient justification, and thus ran contrary to the Texas Constitution’s due course of law provision.[57]

Following that same logic, the Georgia Supreme Court affirmed in May 2020 that the state constitution protects a right to work in one’s chosen occupation free from unreasonable government interference.[58] The case concerned a Georgia law regulating the practice of “lactation care and services,” which provided that licenses could only be issued to privately-accredited International Board-Certified Lactation Consultants (“IBCLCs”), to the exclusion of privately-accredited Certified Lactation Counselors (“CLCs”), despite the fact that “CLCs and IBCLCs are equally competent to provide lactation care and services to mothers and babies.”[59] The trial court had dismissed a CLC’s substantive due process claim on the basis that Georgia’s constitution did not recognize a right to work in a chosen profession; the state supreme court reversed that decision, sending the case back to the trial court for reconsideration.[60]

Finally, in a May 2020 Pennsylvania Supreme Court case, a short-term vacation rental manager was held to have raised a colorable claim that the broker licensing requirements of Pennsylvania’s Real Estate Licensing and Registration Act (“RELRA”) were unconstitutional as applied against her.[61] Pennsylvania’s Supreme Court had previously clarified that the state constitution’s due process clause protects “the right to pursue a chosen occupation.”[62] RELRA’s requirements would have imposed at least 165 hours of coursework relating to buying, selling, and leasing real-estate on the manager in question, none of which were contemplated by her business model.[63] The manager also would have been required to (1) complete a three-year apprenticeship before licensure and (2) establish a brick and mortar establishment to secure the license.[64] Considering all of this, the manager at the very least had a justifiable claim that the requirements as applied against her were unduly oppressive and violated due process.[65]

These cases represent a select few examples of courts using state constitutional guarantees to operate as a check on onerous occupational licensing requirements, even through the application of rational basis scrutiny. The lack of uniformity in the federal approach to this analysis indicates that without further elaboration by the Supreme Court, EDP arguments may more often be forwarded through state constitutional due process protections, as seen in Texas, Georgia, and Pennsylvania. That said, because state constitutional interpretations often mirror federal interpretations,[66] forthcoming federal decisions could have lasting effects on future state EDP jurisprudence.

The Supreme Court could certainly take up an occupational licensing case to address the current circuit split on economic protectionism, though it fairly recently decided against doing so when it denied cert in Sensational Smiles, LLC in 2016.[67] Nevertheless, the Court that denied cert in 2016 was a vastly different Court. Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, all conservative appointees of President Trump, now sit on the Court in the vacated seats of conservative Justices Antonin Scalia and Anthony Kennedy and liberal Justice Ruth Bader Ginsburg. This alignment is important. The Lochner-era Court, after all, was hallmarked by conservativism.[68] With the confirmation of Justice Amy Coney Barrett by Senate conservatives, the sitting Court looks to be more ideologically conservative than it has been for roughly 70 years,[69] indicating the real potential for a jurisprudential shift.                                                                                 

III.         COVID-19 and Economic Due Process

State occupational licensing schemes may provide one vehicle for Supreme Court re‑visitation of EDP jurisprudence, but the Court may also seek to re-enter the fray via challenges of state COVID-19 closure orders. Throughout 2020, COVID-19, a highly infectious and deadly communicable disease, spread worldwide, setting off shelter-in-place, stay-at-home, and other emergency social distancing orders at all levels of government.[70] Governors across the United States ordered non-essential businesses to close to prevent unnecessary contact between people and reduce spread of the virus.[71]

It was not long after governments operationalized these closure orders that litigants began challenging them in court.[72] Business owners put forward a variety of challenges in quests for reopening, including equal protection, takings clause, and EDP challenges.[73] Many courts made quick work of these arguments, but the Pennsylvania federal district court’s County of Butler v. Wolf decision bears further analysis.[74] Business owners and other interested parties in Pennsylvania filed this suit after Governor Tom Wolf and Department of Health Secretary Rachel Levine issued orders requiring closure of “non-life-sustaining” businesses in the Commonwealth.[75]

In addressing the plaintiffs’ arguments, the court explained that the Fourteenth Amendment does guarantee a citizen’s right to support himself or herself, supporting this statement surprisingly with citations to Lochner-era cases.[76] After acknowledging that the Supreme Court “recalibrated and de-emphasized” EDP after the Lochner era, the district court nevertheless suggested that the Supreme Court “has never repudiated the recognition that a citizen has the right to work for a living and pursue his or her chosen occupation.”[77] Pushing even further, the court elaborated on a potential jurisprudential shift in a footnote:

In recent years, a growing chorus of cases and commentators have questioned whether the general deference afforded to economic regulations of the right to pursue one’s occupation should be reexamined, and that governmental action be subjected to greater scrutiny.[78]

Despite the suggestion that a heightened level of scrutiny could have been warranted here, the court found itself bound by precedent to apply rational basis scrutiny.[79] In doing so, the court reasoned that the order closing all “non-life-sustaining” businesses was so arbitrary as to fail rational basis scrutiny, as the definition of “non-life-sustaining” was never fully confirmed, and the state’s listing of “life-sustaining” businesses changed several times between March 19, 2020, and May 28, 2020.[80] The court explained:

Although jurisprudence may not afford the right to pursue one’s occupation the same weight as others in our hierarchy of liberties, it cannot be given such short shrift as to allow it to be completely subordinated to an ad hoc and arbitrary regimen that cannot even be reduced to an objective, written definition—even where that regimen is based on good intent.[81]

The court’s thorough discussion in County of Butler indicates that it was conducting a rather searching rational basis review, much like the analysis conducted by the Supreme Court more than 100 years ago in Lochner. Under the circumstances presented, Pennsylvania’s Governor and Health Secretary found themselves acting amid an unprecedented global pandemic and “undertook their actions in a well-intentioned effort to protect Pennsylvanians from the virus.”[82] Many other courts faced with similar challenges concluded that business closure orders clearly satisfied rational basis scrutiny against EDP arguments.[83]

The County of Butler court did something else entirely. While acknowledging the limitations the Supreme Court had imposed after the conclusion of Lochner era, the County of Butler court nevertheless implemented a Lochner-esque approach in its analysis, re-weighing the actions taken by the executive branch and making its own determination that the actions were not justified. The County of Butler court came to this conclusion despite the contrary determinations of the Governor and Health Secretary, implicating serious separation of powers concerns.[84]

The public health impacts of this holding are clear. Limiting executive power to take social distancing actions recommended by public health officials during a pandemic is not a favorable public health outcome; while closures and other actions should certainly be scientifically justified,[85] the importance of controlling a highly contagious and deadly communicable disease cannot be overstated. Furthermore, were the Supreme Court to accept County of Butler’s invitation to implement a heightened level of scrutiny in assessing EDP rights, then the United States could see a return to the impacts of the Lochner era, during which public safety regulations and laws were re-weighed by the Court based on pre-determined outcomes and struck down in favor of the free market.[86]

Conclusion

A few topically relevant pathways present the Supreme Court with the means to re‑enter the EDP debate. The new makeup of the Court increases the potential for the Court to revisit Lochner-era principles, whether via occupational licensing scheme challenges, COVID‑19 emergency order challenges, or both. The problems with being too deferential are clear: economic protectionism and “politics” can justify legislative or regulatory actions that limit occupational access and do not provide clear public health benefits. On the other hand, a full return to Lochner-era rebalancing would be a mistake for public health, as it would place judges in the position of second-guessing public health experts, rather than allowing those experts to take swift and decisive action. The County of Butler decision has been appealed to the Third Circuit, so it may only be a matter of time before it, or another case like it, reaches the Supreme Court.[87] To ensure the best possible outcome, the Court must tread softly, or else risk unanticipated damage to the public’s health.

The Bulletin welcomes any response, counter or commentary which may be forwarded to the Online Editor, at the contact information in our “About the Bulletin” page.