Georgia Breaks with Federal Courts on Economic Liberty

For more than 80 years, federal courts have been inhospitable to claims rooted in “economic liberty” — the notion that the Due Process Clause of the 14th Amendment limits the government’s authority to interfere in a person’s employment or ability to enter into contracts. Last month, however, in Raffensperger v. Jackson, Georgia’s high court unanimously embraced heightened protections for economic liberty, striking down an occupational licensing law under the state’s Due Process Clause. The court explained that Georgians — in this case, lactation consultants — have the right “to pursue a lawful occupation of their choosing free from unreasonable government interference.”

In 2016, Georgia enacted a law requiring lactation consultants — who provide breastfeeding care and services for compensation — to secure a state license. Consultants had to pass a written exam (costing about $650), complete 14 courses in health sciences, including 8 college-level courses, and perform 300 supervised clinical hours. While less onerous and costly lactation accreditation and training regimes are common in Georgia, they could not be used to obtain a license.

Under the U.S. Constitution, these kinds of laws almost always survive challenges. Courts review them under a “rational basis” standard: as long as the regulation has a rational relationship to a legitimate government objective, it passes constitutional muster.

This is about as deferential a standard as you can get. In a 1955 case involving the regulation of opticians, the U.S. Supreme Court made clear that a law may be “needless” or “wasteful” without being unconstitutional. Making reference to the early 20th century’s Lochner era, when the Court regularly invalidated government regulations and worker protections, Justice William O. Douglas observed, “The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.” It’s up to the legislature, not the courts, to evaluate such measures, the Court explained.

Georgia didn’t embrace Lochner 2.0 under its state constitution, but it did reject the “extraordinary deference” that the U.S. Constitution gives to economic regulations. Pointing to a “consistent and definitive” understanding that Georgians have a right to “engage in any honest employment [they] may choose, subject only to such restrictions as are necessary for the public good,” the court established a more rigorous review to determine any “arbitrary” burdens on people’s ability to pursue lawful work.

“Georgia’s Due Process Clause requires more than a talismanic recitation of an important public interest,” the court explained. Rather, the government has to put forward “a specific interest in health, safety, or public morals.” Protectionism or generic interests in quality or honesty in goods and services are not sufficient justifications. Here, there was no evidence that unlicensed lactation consultants were doing affirmative harm and plenty of evidence that alternative training regimes were also effective. Concerns that unlicensed consultants could pose a danger were, in the court’s view, purely speculative. For that reason, the government’s purported justification for the law wasn’t sufficient.

Georgia isn’t the only state to part ways with the federal courts in cases involving economic liberty. In 2015, the Texas Supreme Court ruled that Texas’s cosmetology laws and regulations couldn’t be applied to eyebrow threaders, because the 750 hours of required training for a cosmetology license — most of which does not relate to eyebrow threading — was “so oppressive” as applied to them that it violated due process under the Texas Constitution. Similar cases are also pending in Louisiana (hair braiding) and Oklahoma (eyelash extensions). At a moment when occupational licensing reform is gaining momentum in many states, state courts are poised to be important players.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.