Castle Rock v. Gonzales
Funny Stuff

The tragicomedy of rational basis

In Louisiana, you need a license to become a florist. Not just a business license, mind you—you have to take and pass a professional occupational examination, consisting of an hour-long written exam and a three hour performance test. The performance test evaluates candidates on such subjective criteria as the “harmony” and “effectiveness” of their floral arrangements.

This is a magnificent example of the fact that occupational licensing, while often defended on the grounds that it protects the public from dangerous or incompetent practitioners, is far more often just an excuse for protecting insiders against competition. Licensing is what economists call a “barrier to entry,” making it more expensive to enter the trade. This is very distressing in a country that prides itself on economic opportunity. The right to earn an honest living—which Justice Douglas once called “the most precious liberty man possesses,” Barsky v. Board of Regents, 347 U.S. 442, 472 (1954)—is being stifled in the interests of whichever group can muster the best lobbyists.

As David Bernstein points out in his great book Only One Place of Redress, licensing has a disproportionately negative impact on racial minorities and other groups who tend to have less time and money to invest in obtaining licenses. The results were often stark: eleven years after the Ohio Supreme Court upheld a licensing requirement for plumbers, “only five blacks were licensed as plumbers in the entire city of Cleveland, despite the fact that blacks had once been prominent in the skilled trades there.” Id. at 96. Occupational licensing laws continue to have a disproportionate impact on racial minorities today. See id. at 98-99 (“a 1953 state investigation disclosed that out of 3,200 licensed plumbers in Maryland, only two were black.... As late as 1972, only one black plumber was licensed in all of Montgomery County, Alabama, and he was only able to get his license after a ferocious struggle with the local plumbers’ union.”). See further Cornwell v. Hamilton, 80 F. Supp. 2d 1101, 1104 (S.D. Ca. 1999) (cosmetology licensing requirement for African hairbraiders had disproportionate racial impact).

The Institute for Justice challenged the constitutionality of the Louisiana law. Unfortunately, in March, the Federal District Court for the Middle District of Louisiana affirmed the constitutionality of the law under the rational basis test. And its justification for doing so speaks volumes about the sad state of economic freedom in this land of opportunity:

Plaintiffs have argued that the government’s asserted interest in public health and safety is not rationally related to the florist licensing scheme because it is uncommon for persons to be injured by improperly assembled floral arrangements. Plaintiffs argue that “people handle millions of unlicensed floral arrangements around the world every year without being harmed.” However, the evidence in the record does reveal and support Louisiana’s concern for the safety and protection of the general public. For example, Ben Knight, the Retail Florist for the State of Louisiana, testified as follows:

I believe that the retail florist does protect people from injury, the public and their own people. We’re very diligent about not having an exposed pick, not having a broken wire, not have a flower that has some type of infection, like, dirt that remained on it when it’s inserted into something they’re going to handle, and I think that because of this training, that prevents the public from having any injury....

The Court finds that the decision of the State of Louisiana to regulate the floral industry and to license those engaged in the industry by administering a floral licensing examination is rationally related to the state’s desire that floral arrangements will be assembled properly in a manner least likely to cause injury to a consumer, and will be prepared in a proper, cost efficient manner. Thus, the Court finds that the examination is rationally related to the government interest of public welfare and safety.

Meadows v. Odom, 360 F.Supp.2d 811, 823-24 (M.D. La. 2005). So there you have it. The state may put a massive roadblock in the path of people trying to earn an honest living for themselves and their families, so as to ensure that people won’t prick their fingers on the wires that florists use to hold their arrangements together.

As Clint Bolick is fond of saying, you only need to know two things about the rational basis test: it doesn’t need to be rational, and it doesn’t need to be the basis.

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