Around the country, states have imposed licensure requirements on a large number of professions, effectively requiring workers to seek government permission—and pass through a number of bureaucratic hurdles—in order to practice their chosen profession. Whereas in the 1950s only one in 20 U.S. workers were required to obtain a license, that figure today stands at almost one in every three workers.
For each licensed profession, state legislatures usually authorize and empower a governing board, comprised in most cases of members of that same profession. For example, in Utah, the licensure of chiropractors is regulated by a board made up of four chiropractors and a token “public member” who is not a member of the industry. Nurses are regulated by a board comprised of nine fellow nurses and two public members. Direct-entry midwives are overseen by four licensed people from the profession and one “public member.” The trend holds constant for the other several dozen licensed professions in Utah.
That trend may soon change in light of a U.S. Supreme Court opinion issued in February that may put these boards on the defense. The case at hand, North Carolina State Board of Dental Examiners v. FTC, arose due to the dental board—comprised primarily of dentists—engaging in non-competitive behavior and being sued by the Federal Trade Commission. Specifically, the board attempted to prohibit non-dentists from providing teeth whitening services, presumably because this competition undermined their monopolistic hold on the market.
A recent dust up in Utah courts pitted African hair braiding specialist, Jestina Clayton, against the State of Utah, over a current statute that requires 2000 hours of cosmetology coursework to become a licensed hair braider. Clayton, 30, who learned how to braid at age five and has been practicing longer than most cosmetology students have been alive, won the case on the basis of her constitutional right to earn a living. The judge cited the lack of evidence for any threats to public safety as grounds for his decision.
Libertas Institute applauds U.S District Judge David Sam for this common sense and correct opinion. In doing so we recognize that while many can see the restrictive absurdity in making a hair braider take 2000 hours of coursework, there are many who still believe that some licensure is necessary for hair braiders and other common service providers. Enter Republican Rep. Jim Dunnigan, who wants to “reduce” the licensure requirement to 300 hours despite a judge’s opinion stating no credible threat to public safety exists. This all sounds well and good if all you’re trying to do is move the needle on bureaucratic overreach. However, we interpret the judge’s decision as a mandate for the legislature to remove this particular licensure provision completely or supply evidence that there is a threat to public safety—something no lobbyist or special interest has been able to do. We therefore support legislation, which we expect to be introduced in the 2013 general session, that will require state officials to demonstrate a clear public safety threat prior to imposing such burdensome regulations.