U.S. Supreme Court Denies Case Examining Constitutionality of Economic Protectionism

John Kramer
John Kramer · March 21, 2005

Washington, D.C.—The U.S. Supreme Court today deferred to another day the question of whether the government can prevent you from pursuing an honest living for no other reason than to protect existing companies from competition when it declined to review a 10th U.S. Circuit Court of Appeals ruling upholding Oklahoma’s government-imposed casket cartel.

In that decision, the 10th Circuit found naked political favoritism in government regulation of business to be a “legitimate government interest,” thus jeopardizing the rights of entrepreneurs to pursue an honest living in the occupation of their choice. Oklahoma law makes it crime for anyone other than a fully licensed funeral director to sell caskets within the state, even though casket retailers do not handle dead bodies or perform any other funeral services. Obtaining an Oklahoma funeral director’s license requires at least two years of full-time college course work, a one-year apprenticeship that requires the embalming of 25 bodies, and two exams. In 2002, the 6th U.S. Circuit Court of Appeals struck down Tennessee’s nearly identical licensing regime.

“It is extremely disappointing that the nation’s highest court declined to review an appellate decision that gives a green light to blatant economic protectionism,” said IJ Senior Attorney Clark Neily. “But we will fight on until courts take seriously their duty to protect the right to earn an honest living and strike down legislation that inhibits vital constitutional rights for no other reason than to protect favored businesses.”

“We will continue our strategic litigation campaign to vindicate the constitutional right to economic liberty—the right to earn an honest living free from excessive government regulation,” added IJ President and General Counsel William Mellor. “We will not rest until entrepreneurs get their day before the High Court to secure a resounding victory for economic liberty.”

IJ is currently litigating a federal lawsuit in Louisiana on behalf of three would-be florists challenging the State’s anti-competitive, anti-consumer florist licensing law. Louisiana law requires florists to pass a State-mandated licensing exam before they are allowed to work. No other state in the nation forces people to pass a test just to sell flowers. IJ is also litigating to end arbitrary licensing of African hairbraiders in Mississippi and the state of Washington, as well as to protect the economic liberty of bed and breakfast operators in Seattle.

Economic Liberty Victories

Since its founding in 1991, IJ has scored significant legal victories on behalf of entrepreneurs and, in the process, opened up long-closed markets. These include: ending California’s real estate broker licensing requirements for online real estate advertisers, striking down Tennessee’s government-imposed casket cartel, exempting African hairbraiders in Arizona, California and the District of Columbia from outdated cosmetology schemes, defeating Nevada’s government-imposed limousine cartel, helping commuter vans fight New York City’s public bus monopoly, ending the Commodity Futures Trading Commission’s licensing of software developers and Internet publishers, and breaking open protectionist taxicab monopoly’s in Denver, Indianapolis and Cincinnati.