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By: Michael M. Hill
Appellate decisions sometimes lead to sweeping changes in public policy, particularly at the Supreme Court. One such potential policy change to watch for is whether the right to earn a living will be enshrined as a “fundamental” right.
The Supreme Court recognizes certain rights as “fundamental,” meaning they are “deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997). Not all fundamental rights are explicitly mentioned in the Constitution; among the unenumerated rights are the right to interstate travel, the right to marry, and the right to parent one’s children. If a right is fundamental, it is much more difficult for the government to regulate it.
The right to engage in the profession of one’s choosing traditionally has not been among these fundamental rights, but a growing chorus of judges and legal scholars are calling for this to change. Currently before the Supreme Court in Tiwari v. Friedlander is a petition for review by two individuals who wanted to establish a home healthcare company in Kentucky focusing on serving Nepali-speaking patients. Kentucky limits the number of such companies operating in each county and refused to issue these individuals a certificate to operate, finding they failed to demonstrate a sufficient public need for their services. They argue Kentucky has violated their right to earn a living and that the Court should apply a more exacting standard of review to such violations than it currently does.
Interestingly, Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals (who wrote the opinion Tiwari is seeking to appeal) wrote that he agreed the petitioners’ challenges are “formidable” but that he nevertheless was bound by the Supreme Court’s precedents until the higher court decides to change the standard of review for regulations governing the right to earn a living.
In a more recent opinion from the Fifth Circuit Court of Appeals, Judge James Ho directly asked the question: “If we’re going to recognize various unenumerated rights as fundamental, why not the right to earn a living?” Golden Glow Tanning Salon, Inc. v. City of Columbus, Miss., No. 21-60898, 2022 WL 16754369, at *5 (5th Cir. Nov. 8, 2022) (Ho, J., concurring). Golden Glow involved a tanning salon that the City of Columbus, Mississippi forced to shut down temporarily during the COVID pandemic, while permitting certain other types of establishments, like liquor stores, to remain open. In agreeing that the City’s COVID regulation was lawful under current precedent, Judge Ho expressly pointed to the petition for review in Tiwali and said it was up to the Supreme Court to change how lower courts should review laws regulating the right to earn a living.
If the Supreme Court decides to hear the appeal in Tiwali (or if Golden Glow follows with an appeal of its own), it could signal a sea change in the power of government at all levels to regulate economic activity in their jurisdictions.