Utah should protect the right to work

The following op-ed was recently published by the Deseret News.

Half a century ago, only 1 in 20 Americans had to obtain a government permission slip (a license) to legally practice their chosen occupations. Today, that number stands at 1 in 3.

This dramatic expansion of occupational licensure has created a bureaucratic maze through which entrepreneurs and employees must traverse to provide for their families. And without appropriate restraints on government’s ability to regulate, these policies have gotten out of hand.

For evidence, consider a recent national report issued by the Institute for Justice, comparing each state’s occupational licensure laws. Its research finds that Utah has the 13th most burdensome licensing laws—a clear disconnect coming from a state that so often touts itself as being “best for business.”

Consider an alternative scenario — one in which, absent any legal restraint, the government specified what you could say and in what forums you could say it. Regulations in this dystopia might determine how critical you could be of elected officials, whether you could leave negative reviews about a business online, and how radical your expressed views were allowed to be before fines and punishment set in.

Thankfully, this dystopia is fiction, due in large measure to the First Amendment that prohibits Congress from making laws prohibiting speech. Our right to free speech is thus legally protected, and government’s ability to regulate it is restrained only to areas of legitimate public safety — for example, disallowing people from shouting “fire!” in a crowded movie theater.

One’s right to work in his or her chosen occupation was once considered constitutionally protected. For example, in a 1923 case, the U.S. Supreme Court stated that the Constitution’s Due Process Clause “without doubt… denotes the right of the individual… to engage in any of the common occupations of life.”

In the century since, many courts have not viewed the right to pursue a lawful occupation as favorably, leading to the alarming rise in occupational licensure previously mentioned. Without constitutional handcuffs and judicial oversight, legislative and regulatory bodies have proliferated restrictions with no comprehensive pushback.

Many Utahns are familiar with the case of Jestina Clayton, a Utah woman originally from Sierra Leone whose hair-braiding operation was shut down by the state. Clayton lacked a cosmetology license, the state said, and needed to spend 2,000 hours in class at a cosmetology school, despite the fact that none of the schools in Utah taught African hair-braiding. Even more absurd, Clayton had been braiding hair, without incident, longer than most cosmetology students then in school had even been alive.

With the help of the Institute for Justice, Clayton sued the state and won. Her case led the legislature to modify the cosmetology licensure law by reducing the schooling hours to 1,600 and carving out hair-braiding completely.

But 120 other professions in Utah currently require a government permission slip, and many of them impose onerous burdens as a condition of entering the market. This discourages competition, makes it harder for low-income Utahns and immigrants to enter the workforce, and exacerbates the state’s recidivism problem.

Potentially, thousands of Utahns would assert that the occupational licensure requirements they must abide by are onerous and unnecessary to protect public health and safety. They shouldn’t each have to sue to make their case, as did Clayton. Comprehensive reform is a better path.

Libertas Institute proposes doing exactly that through the Utah Constitution — incorporating an amendment that proactively protects this fundamental right.

Utah should constitutionally protect the right to work, just as we protect the right to speech. The state would still be free to regulate but only narrowly and where necessary to protect public health and safety. If that standard cannot be met, then individuals must be free, as they once were, to pursue the peaceful occupation of their choice.