In his 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law,” Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit, begins by observing that throughout the 20th century, “the States and their constituent parts—legislatures, governors, courts, local governments—have been the policy villains in this or that area of the law and this or that era of history.”
Sutton nonetheless maintains that “federalism could be a solution … in today’s chapter of American history.” One way of making that so, he writes, is to “focus on state constitutions as meaningful sources of rights protection.”
The Georgia Supreme Court’s unanimous decision May 31 in Raffensperger v. Jackson is the most recent affirmation of that approach. The court employed the distinct history of the Georgia Constitution’s Due Process Clause to recognize the right of Georgians “to pursue a lawful occupation of their choosing free from unreasonable government interference.”
Importantly, the court did not stop with the recognition of that economic right. It also set forth a framework for assessing claims brought to vindicate that right. In so doing, the court took pains to distinguish its approach from the notoriously lax federal standard governing due process claims based on economic deprivations.
The Georgia Constitution’s Due Process Clause (Art. I, Sec. I, Para. I) is framed in terms nearly identical to those found in the U.S. Constitution’s 5th and 14th Amendments: the state must afford persons “due process of law” before it can deprive them of “life, liberty, or property.”
Yet, that apparent similarity is misleading. Chief Justice Michael Boggs, writing for the court, criticized Georgia decisions as recent as 2017 for “fail[ing] to carefully distinguish the [state and federal] constitutional claims asserted.” He maintained that the court had never “expressly adopted the federal due process test,” the so-called rational basis review, which he characterized as affording “extraordinary deference to the legislature.”
By adopting a more rigorous approach protective of economic rights, Georgia bucked the trend of state courts mapping the federal Constitution onto state constitutions and treating the guarantees as co-extensive.
Before examining the Georgia Supreme Court’s approach, some background: The necessary predicate for a good decision was a questionable bit of legislation.
In 2016, the Georgia legislature enacted a law requiring “lactation consultants”—professionals who assist and counsel nursing mothers—to obtain a state-issued license to continue working in the field. To obtain that license, individuals, even those like the plaintiffs who had long been providing covered services, were obliged to take roughly two years of college courses, including credits in “cultural sensitivity or cultural anthropology” and complete more than 300 hours of supervised clinical work.
Previously, the legislature declined to pass a 2013 bill with the same effect after the state’s regulatory review council “unanimously recommended against passage.” It’s unclear what events in the succeeding three years impressed upon the legislature the compelling link between cultural anthropology and sound advice on breast-feeding. But with its 2016 regulation, Georgia joined a distinct minority of states.
Even as the general trend is to require licenses for an ever-greater number of occupations, 46 states have no licensing requirement for lactation consultants.
Of course, taking a minority position on a policy issue does not itself make the decision unwise. Still, some like Mary Jackson, a Georgia woman with three decades of experience counseling nursing mothers, were naturally interested in the state’s reasons for barring them from their chosen profession pending completion of a byzantine course of study and supervision.
In 2018, Jackson filed suit against the Georgia secretary of state (first Brian Kemp, who is now governor; then Brad Raffensperger) challenging the law under the Georgia Constitution as a violation of her due process right to practice her profession. Jackson and her co-plaintiff were ably represented by attorneys from the Institute for Justice, which has long fought the expanding reach of professional licensure regimes.
The legislature responded with boilerplate. The law “protect[s] the health, safety, and welfare of the public,” it said. Had this been a federal case, that might have been the end of the matter. The U.S. Supreme Court has accepted that a law may be “needless” and “wasteful” while still qualifying as a rational economic regulation. And as the Georgia chief justice observed, Georgia recognizes public health, safety, and welfare as facially valid reasons for legislation. But that was not the end of the matter, because Georgia treated Jackson’s profession not merely as an economic interest to be rationalized away, but as an “inherent” right that the state could not haphazardly burden. So, the court performed a more searching review.
First, Jackson and her co-plaintiff had to show that the law unreasonably interfered with their pursuit of a lawful occupation. Lawfulness was not contested, and the court had no difficulty concluding that plaintiffs were burdened by the law. Although the plaintiffs remained nominally responsible for proving their claim, the court then examined the reasonableness of the burden in relation to the state’s justification.
Like the U.S. Supreme Court, the Georgia Supreme Court disclaimed any ability or willingness to engage in ad hoc interest-balancing. But absent some showing that the occupation entailed particular risks to public welfare, the court refused to accept the secretary of state’s assertions of a need to ensure quality as sufficient.
The state did not contend that lactation consulting as a profession presented inherent risks to the public. The court, for its part, stated that there is nothing “inherently harmful” in the practice, and thus an unlicensed consultant could at most fail to help, rather than affirmatively harm, a patient.
The court bolstered that conclusion, noting that the secretary of state’s office cited no evidence of harm from a person providing lactation care. Given the speculative nature of the harm and the considerable restriction on individuals seeking to enter the field, the court effectively found that the law would do more harm than good.
By subjecting an economic regulation (one that involved no suspect classifications) to meaningful judicial scrutiny, the Georgia Supreme Court has done something the U.S. Supreme Court has been loath to do for a century.
How stringent that standard is will only be revealed through further litigation. Jackson and her co-plaintiff benefited from the secretary of state’s decision to withdraw his motion to dismiss and to engage in discovery. Consequently, the plaintiffs’ case was helped by their ability to point to a record devoid of proof that unlicensed lactation consultants caused harm to mothers or babies.
The outcome, thus, relies on a mixture of law and fact.
Whether things would conclude as favorably for hypothetical future plaintiffs required to litigate a motion to dismiss is an open question. Such motions typically are decided as questions of law without reference to evidence. How far will Georgia courts go in interrogating the state’s contention that a profession presents unique risks to the public warranting regulation?
The court maintained that there is “no requirement that the government must compile or offer evidence in the course of enacting such a regulation.” How will courts assess the reasonableness of the regulatory burden in relation to the particular risk of harm?
Maybe the latter is inherently a mixed question of law and fact, requiring the parties to engage in discovery. Perhaps Georgia will adopt something akin to the “congruence and proportionality” standard that the Supreme Court has devised to impose an evidence-based limitation on Congress’ power to enforce the 14th Amendment.
Georgia must, in any event, develop a consistent means of evaluating the legitimacy and reasonableness of disparate regulatory burdens on individuals’ right to lawful employment. But it need not construct those standards from scratch.
The Jackson decision illustrates the court’s appreciation for the relevance of history to the judicial inquiry. And while the Georgia Supreme Court did not take its national counterpart’s cues on economic liberty, it appears willing to following the U.S. Supreme Court’s recent jurisprudence affirming the primacy of history and tradition.
The Jackson decision represents a state-level form of substantive due process, whereby the court discerns unenumerated rights within the concept of “liberty” by reference to state legislative and judicial history.
That approach comports with the rationale in Dobbs v. Jackson Women’s Health Organization, which took pains to engage the historical record as a guide to determining the rights inhering in our national conception of ordered liberty.
Past Georgia legislation and case law will provide, at a minimum, a starting point for assessing what occupations have been treated as requiring greater regulatory oversight.
In the closing of his book, Sutton briefly describes how the U.S. Supreme Court’s refusal to provide meaningful protection for property owners spurred a host of legislative and judicial responses in the states that better secured the right of real property. Perhaps the right to a lawful profession now finds itself on a similar trajectory.
Rationales vetted and adopted by state supreme courts do not remain forever consigned to that territory. Sutton reminds us, “When the National Court enforces a federal right, prior state court decisions in the area often influence the decision.”
If Georgia and its sister states flesh out a reasoned framework for protecting a right to practice one’s profession, the approach will win more followers, and the U.S. Supreme Court might be among them.
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