May 21, 2018

California can help those in need — if it would just let them work

By Anastasia P. Boden Attorney

Originally published by The Hill May 21, 2018.

If we want to give the neediest in our society a path to self-sufficiency, we must give them a path to employment. Yet, a bill before the California legislature — which would have done just that — died in committee on a party-line vote. That’s a shame. Political partisanship should not trump economic opportunity.

The biggest obstacle to entrepreneurship in California and many other states is occupational licensing laws. Though licensure was once limited to professionals such as doctors and lawyers, nowadays one must pay onerous fees and undertake years of experience to get a license to shampoo hair, upholster furniture, trim trees, apply make-up, or even auction items.

Not surprisingly, California is one of the most broadly and onerously licensed states. On average, it takes $486 and 827 days of training, as well as passing two exams, just to enter a lowincome occupation. It takes 1,500 hours of training and passage of two exams to get a license to simply wash someone’s hair for money.

These epic requirements cannot be justified in the name of “public safety.” There’s no argument that shampooing hair requires 10 times the amount of training necessary to become an EMT (which takes just 160 hours).  Instead, studies show that licensure is largely explained by politics: entrenched businesses lobby for barriers to entry that keep out fair competition. A good example hails from neighboring Arizona. When the legislature recently sought to exempt blow dryers from the cosmetologist licensing statute, the licensed cosmetologists came out in droves. They not only sounded alarms about the supposed dangers of unlicensed blow dries, they transparently complained that unlicensed people were going to take their jobs.

Overly broad and burdensome licensing laws raise serious constitutional problems. Some people, therefore, turn to the courts to get silly requirements struck down. But they often fare no better there. Under a judicial doctrine known as the “rational basis test,” courts will uphold a law unless a plaintiff can rebut any conceivable rationale for it. That’s a nearly impossible feat.

Recently, a federal court upheld Missouri’s requirement that “African-style hair braiders” undergo more than a thousand hours of training, costing tens of thousands of dollars, to get a license before braiding hair — despite the fact that less than 10 percent of the training actually pertained to hair-braiding. The court ruled that the law was a “rational” exercise of state power — demonstrating how difficult it is to prove that a licensing law is irrational.

AB 2409 promised to change all that. Following bipartisan legislative efforts in WisconsinNebraskaArizonaMichigan and Tennessee, the bill sought to reduce licensing burdens while maintaining the state’s legitimate interest in protecting the public.

Introduced by Assemblyman Kevin Kiley, AB 2409 created a petition process whereby people could ask a board to rescind abusive licensing rules. If the board did not act, it would’ve allowed the petitioner to challenge the rule in state court, and placed the burden on the agency to prove that its law is related to public safety instead of cronyism. The idea was to discourage litigation by giving licensing bodies an incentive to seriously consider regulations during the petition process.

The bill also would have corrected licensing abuses which hit the neediest segments of society: it prohibited boards from denying a license to someone merely because they have unpaid taxes or student loans, and it prohibited boards from automatically disqualifying someone from licensure based only on their criminal record.

Yet the bill died. Why? Opponents claimed it threatened public safety. Tree trimming, they said, is a dangerous occupation. Giving people a meaningful opportunity to challenge licensing requirements will lead to the elimination of all sorts of important safety regulations — such as licensure of tree trimmers.

If tree trimming is dangerous enough to warrant four years of training, $500 in fees and passage of two exams, surely the state can prove it in court. And if not, there are other ways to protect the public short of licensure, including certification, registration and bonding. Only six other states license the practice, which means that 44 states have found other ways to protect the public. Yet based on fear-mongering arguments, the bill was voted down — with opponents maintaining their supposed health and safety objections.

AB 2409 did not seek to subvert public safety to other objectives, it sought to elevate public safety over protectionism. This is a bipartisan issue, endorsed by both the Obama White House and Trump’s Federal Trade Commission alike.  Bills such as 2409 should not go down in a party-line vote. When they do, Californians who want to earn an honest living suffer.

Anastasia Boden is an attorney with the Pacific Legal Foundationwhich litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.

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