Anthony Sanders is director of the Center for Judicial Engagement at the Institute of Justice and is representing plaintiff Greg Mills. Mills v. Arizona Technology Registration Board.
For entrepreneurs facing pointless regulations, history is on their side. Whether that history will help you is now being heard in the Arizona Supreme Court. Mills v. Arizona Technology Registration Board. Electrician Greg Mills is objecting to state licensing requirements, even though few other technicians doing his job face such requirements. This is the latest example of a state court revisiting the state constitution’s entrepreneurial past.
history of work
The right to earn a living is ancient freedomrecognized by sources as being as antique as Lord Coke’s. lawsuit against monopoly In 1602, Antebellum opinionis protected in all kinds of courts during the so-called “.Loknar era”But readers may have learned in law school that the U.S. Supreme Court consigned that right to the dustbin of history during the New Deal.
That last part is only partially true. The right to earn a living continues to live on in federal courts, albeit primarily as a technical issue. A law can violate rights under the U.S. Constitution’s Due Process Clause even if it fails the rational basis test enunciated in 1955. Williamson vs. Lee Optical. But this is an incredibly difficult test for the government to fail. result changeBut federal court is not a kind place for entrepreneurs.
What about state courts? I used to be familiar with How did economic freedom come to be enjoyed in state constitutions after the New Deal? This meant that entrepreneurs had a chance to fight against restrictions on engaging in trade in many states. Although courts have not typically evaluated restrictions using rigorous scrutiny (indeed, the government has typically enjoyed the benefit of the doubt), courts will take a hard look at the facts and assess whether the law is a reasonable way to promote public health, safety, and welfare. This is sometimes referred to as the “actual substantive test.” under lee optical In contrast, courts speculate about the facts and test whether the legislature can fabricate reasons maybe Considered passing the law in question.
However, over the years, many states have finally succumbed to the huge suction sounds that are often caused between the pixels. state court report: lockstep doctrine. lee opticalType review is being applied to an increasing number of state constitutional cases. However, not always. As a result, many states’ standards are confusing. Some case law says that Entrepreneurs have an opportunity in proving their claims based on older standards that emphasized practical reasonableness, often the “real and substantial” test mentioned above. In fact, in some of those cases, fairly recent And entrepreneurs often win there. But there are many others that encompass it lee optical test. That being said, some states georgia, north carolinaand texas— explicitly denied lee optical In recent years, when it comes to the right to earn a living.
Designed to stand out from the competition
So, back to Arizona’s Greg Mills. He has worked for decades as an engineer designing electrical circuits for everything from flashlights to satellites. Like most engineers in the United States, he doesn’t have a license. Estimation 80% are not.
Engineering licensing laws vary from state to state, but in general, including Arizona, licenses are only required for so-called professional engineers. Professional engineers work almost exclusively on construction projects such as roads, dams, buildings, and similar large-scale projects. (Think of someone like a civil engineer). Mechanical and electrical engineers who design products, like Mills, typically don’t need a license. The same is true for many other types of engineers, such as software engineers and biochemical engineers. This is because, unlike designing electrical products or software, construction plans typically require a professional engineer, architect, etc. to approve the plans before construction.
Unfortunately, these lines have sometimes blurred, and for decades there have been bitter turf battles over who needs a license and who can get one. phone He is also an “engineer”. Many professional technical committees are a classic example of regulatory capture, where managers acknowledge that unqualified non-civil engineers can do their work as long as they don’t call it “engineering.” Even if that English word accurately describes their job. Although professional engineering lobbyists argue that these engineers cannot call themselves “engineers” to protect the public, this author and others who value economic freedom argue that they are actually just protecting the money and prestige that comes with licensing. In fact, a specialized engineering group I asked that all engineer Licenses may be granted for similar protectionist and anticompetitive reasons.
Mr. Mills was caught in the crossfire of this in-house engineering line drawing. According to Arizona authorities, when Mills worked full-time for a manufacturer, he precisely designed electrical circuits for products. But when he started his own consulting business, doing the same for large and small manufacturers as an independent contractor, he needed to obtain a license. In this case, he would have had to either close his business and work for eight years for a qualified professional engineer (likely doing construction work unrelated to his actual occupation) or work full time for the manufacturer, which again is not required to employ a qualified professional engineer themselves.
In 2019, Mills challenged this nonsensical plan based on the Arizona Constitution. He did not argue that the state did not have the power to license engineers. Rather, he said it was unconstitutional to force him to obtain a license, given who is required to obtain a license and who is not required to obtain a license. Among other claims, he argued that forcing him to obtain the license violated his right to earn a living under the state’s Due Process Clause. Another argument said forcing manufacturers to obtain licenses without forcing them to do so violates Article 2, Section 13 of the Arizona Constitution, which requires equal treatment of “privileges or immunities” and has been considered the equivalent of the state’s Equal Protection Clause.
After going to the Arizona Supreme Court on procedural issues in 2022, the trial court dismissed his case. Among other things, the court ruled that Arizona’s right to livelihood protections are equivalent to federal standards. The Intermediate Court of Appeals affirmed.
In January, Mills returned to the Supreme Court, this time arguing the merits of the case, although it was still in the motion to dismiss stage. The court asked the parties to answer three questions: First, what is Arizona’s standard for economic freedom litigation? Second, is Mills “similarly situated” to an engineer working full time in a “manufacturing industry”? And third, does the restriction of the use of the word “engineer” to Mill affect his right to free speech?
in Oral argument Last week, the justices were most focused on the first issue. Lawyers and judges on both sides drew attention to the differences and similarities between the two cases. lee optical The test — adopted by the Arizona Supreme Court in a 1981 case; Arizona Downs vs. Arizona Horsemen’s Foundation—and standards that applied before 1981.
Government legal advisers argued there was no point in going back because there was no significant difference between the two tests. From my (admittedly biased) standpoint, this is a stretch, but it all boils down to the fact that words like “reasonable” and “rational” have been used in economic freedom cases throughout the ages. In several cases in the 1920s, laws were upheld on the grounds that they were “reasonable.” lee optical I’ve done the same thing sometimes. In contrast to the state, Mills’ lawyer and my colleague Paul Avelar emphasized that the government had lost many cases before 1981, showing that the previous cases were actually more protective of economic freedom. He also said the court’s method of carefully assessing the facts was simply not appropriate. lee optical When you take a rational-based test, lee optical Seriously, facts generally don’t matter. Courts can fabricate them if they seem even remotely plausible.
Arizona’s Constitution was established in 1912, the year Arizona joined the United States. From an originalist perspective, the criteria then used in economic freedom claims are lee optical Of course, the U.S. Supreme Court itself did not use this test in 1912. And for those who don’t like originalism, the same applies from an anti-lockstep perspective. Arizona courts should not change their standards just because a federal court has changed their standards.
If the court rules against Mr. Mills, his case would go back to the trial court and direct the court to apply more protective standards to attack the state’s haphazard licensing system. More importantly, the decision places Arizona firmly in the league of states that have more clearly protected the right to earn a living in recent years, clears up the mudslinging of recent case law, and brings the Constitution into better alignment with its entire history.
