Getting a Second Wind: Reviving Natural Rights Clauses as a Means to Challenge Unjustified Occupational Licensing Regulations

Occupational licensing refers to a government-imposed regulation which requires an individual to obtain a license before engaging in a certain line of work. Over the last several decades, occupational licensing regulations have expanded rapidly. While some of these regulations can be justified as a form of consumer protection (as in the medical industry), many simply operate as barriers to entry (as in the interior design industry). Furthermore, these regulations impose economic costs that fall disproportionately on those who are economically disadvantaged. Fortunately, bipartisan state legislative efforts have begun to make some progress in rolling back these regulations. However, because legislative reform is often slow, the bearers of these burdensome regulations often seek redress through the court systems. In a recent case, Ladd v. Real Estate Commission,1 the Pennsylvania Supreme Court ruled that certain licensing requirements violated the right to pursue one’s chosen occupation—a right it said was protected by the state’s natural rights clause enshrined in the Pennsylvania Constitution. We believe that Ladd’s conclusion is correct in light of the historical understanding of these natural rights clauses. Importantly, Pennsylvania is one of thirty-three states to have such a clause in its state constitution. These natural rights clauses provide an easy anchor point by which to argue that unjustified occupational licensing unduly interferes with one’s right to pursue a chosen occupation and, consequently, interferes with the rights guaranteed by the state constitution. Therefore, Ladd can serve as a powerful example of how to limit the breadth of occupational licensing through state court litigation in the majority of states