An Open Question...A Sadly Open Question.

The question is: Does an American have a right to make a living? It turns out the answer is kinda "no." American Dream on a Spike

Alan Merrifield doesn't believe in pesticides. He thinks they're dangerous, ineffective and bad for the environment. In any case, he doesn't deal with bugs. He helps people keep common pests like raccoons and birds away from their homes, using only traps, screens and spikes.

Nonetheless, state bureaucrats insist that the 68-year-old Merrifield — who already holds five state pest control licenses — needs another license, called a "Branch 2 License," before he can install spikes on buildings to keep pigeons away. To get such a license, one must spend two years learning how to handle pesticides — pesticides Merrifield doesn't use — and then take a 200-question multiple-choice examination … which does not contain a single question about spikes or pigeons.

It gets worse. The law only applies to people who work on pigeon, mouse or rat problems. In other words, someone who installs spikes on a bridge to keep seagulls from roosting there doesn't need a Branch 2 License. But install the same spikes on the same bridge to keep pigeons away, and you do. The penalties can amount to fines of $1,000 per violation and even jail time.

It turns out the licensing laws in this case were put in place by powerful private interests to protect their industry from competition. But certainly the state cannot act in such a manner legally, right? Wrong.

Unfortunately, the Merrifield case is an all too typical example of the abuse of occupational licensing to prevent fair economic competition. Such laws often bar honest Americans from earning a living and providing consumers with useful goods and services. As a result, the entrepreneurial spirit at the heart of American enterprise suffers, and the rule of law is transformed into a game where powerful companies can exploit legislatures for their own benefit.

As U.S. Supreme Court Justice John Paul Stevens noted 20 years ago, "private parties have used licensing to advance their own interests in restraining competition at the expense of the public interest."

Alas, thanks to the "rational basis scrutiny" that courts have applied to economic regulations, judges presume strongly against entrepreneurs like Merrifield. Plaintiffs are required to prove that there is no conceivable ground on which the law could be considered rational — that is, to prove a negative — before a court will protect their constitutionally protected right to earn a living.

The rational basis test was devised in a series of cases in the 1930s. The right to earn a living had been considered a fundamental part of the common law for more than three centuries before that — England's Chief Justice Edward Coke wrote in 1615 that "at the common law, no man could be prohibited from working in any lawful trade, for the law abhors idleness, the mother of all evil." But in the 1934 case of Nebbia v. New York, the justices held that from then on, courts would presume that economic regulations are constitutional except in the most extreme cases.

I'm no libertarian. I have no problem with the state regulating workplaces for health and safety concerns, but this situation touches on something more fundamental than that. The desire to protect vested interests from the perils that can come from innovation and entrepreneurship can do nothing but lead to an ossified society. If we are willing to "protect" the status quo of the pest control industry, what does that say about how far we would go in any other industry? Will the day come when the Microsoft empire will need to be "protected" from competition and the marketplace? (And some would say that day has come and gone already.)

It is a bad road to even begin to journey down.