Occupational Licensure Boards: On the Defense after SCOTUS Ruling?

April 23, 2015  |  Posted in: Center for Free Enterprise  |  2 comments

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.

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New Judicial Federalism: How Utah Can Avoid Recent Supreme Court Erosion of the Fourth Amendment

April 28, 2014  |  Posted in: Center for Individual Liberty  |  One comment

The U.S. Supreme Court recently issued a decision in the case of Navarette v. California which has potentially grave consequences for Fourth Amendment rights. The decision upheld the stop of a vehicle precipitated by an anonymous phone tip of erratic driving. Upon identifying the reported vehicle, police followed and did not observe any traffic infractions or signs of impaired driving to corroborate the phone tip. Nevertheless, officers stopped the vehicle based on the alleged reasonable suspicion created by the phone call alone. While the court’s opinion is narrow and contingent on specific facts, it leads us down a dangerous road that erodes the reasonable suspicion standard designed to protect Fourth Amendment rights. By allowing an uncorroborated anonymous phone tip to form the basis of reasonable suspicion, we open the possibility for anyone to send government agents to stop innocent actors without requiring any verification of the accusation.

The court points out the precedent-creating legal standard for a permissible stop:

The Fourth Amendment permits brief investigative stops — such as the traffic stop in this case — when a law enforcement officer has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The “reasonable suspicion” necessary to justify such a stop “is dependent upon both the content of information possessed by police and its degree of reliability.” The standard takes into account “the totality of the circumstances — the whole picture.” Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is “considerably less than proof of wrongdoing by a preponderance of the evidence,” and “obviously less” than is necessary for probable cause.

This type of stop is called a “Terry stop,” deriving its legal authority from the case of Terry v. Ohio (1968) where the court recognized a limited exception to the more traditional probable cause standard for seizing a person in an arrest. In Terry, the court agreed that stopping a person is a form of seizure, and therefore covered by the Fourth Amendment. However, the court reasoned that because this type of police stop is only a brief detention and not the full seizure as with an arrest, they would recognize a limited exception and thus lowered the required standard from probable cause to reasonable suspicion. Over time, the court has widened the application of this exception, giving more discretion to police stops generally. In this case we now see a dilution in the factors that can form a reasonable suspicion.

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