In his 2018 book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, Presiding Judge Jeffrey Sutton of the U.S. Court of Appeals for the 6th Circuit began by observing that during the course of the 20th century, “the states and their constituent parts …” – legislatures, governors, courts, local governments – have been the political villains in this or that area of law and in this or that age of history.”
Sutton nonetheless contends that “federalism may be a solution . . . in today’s chapter of American history.” One way to do this, he writes, is to “focus on state constitutions as useful sources of legal protection.”
The May 31 unanimous decision of the Georgia Supreme Court in Raffensperger v. Jackson is the latest endorsement of this approach. The court used the unique history of the due process clause in the Georgia constitution to recognize the right of Georgians “to engage in lawful employment of their choice without undue government interference.”
It is important that the court did not content itself with recognizing this economic right. A framework for assessing claims to enforce this right has also been established. In doing so, the court was careful to differentiate its approach from the notoriously lax federal standard for proper actions for economic disadvantage.
The due process clause in the Georgia Constitution (Article I, Section I, Paragraph I) is worded in nearly identical language to that in the Fifth and Fourteenth Amendments of the US Constitution: The state must give persons before it a “ due process” may deprive them of “life, liberty or property”.
But this apparent similarity is misleading. Chief Justice Michael Boggs, writing for the court, slammed Georgia’s 2017 rulings as “failed.”[ing] to distinguish carefully [state and federal] constitutional claims made.” He claimed that the court never “explicitly adopted the state’s due process test,” the so-called “rational basis review,” which he described as “extraordinary deference to the legislature.”
With a stricter approach to protecting economic rights, Georgia bucked the trend for state courts to subordinate the federal constitution to state constitutions and view the guarantees as coextensive.
Before we examine the Georgia Supreme Court’s approach, some background: The necessary predicate for a good decision was a questionable piece of legislation.
In 2016, the Georgia Legislature enacted legislation requiring “lactation consultants” — professionals who provide support and counseling to breastfeeding mothers — to obtain a state-issued license to continue working in the field.
To obtain that license, individuals, even those like the plaintiffs, who have a long history of providing insured services, were required to complete about two years of college courses, including credits in “cultural sensitivity or cultural anthropology,” and complete more than 300 hours of supervised clinical Work.
Previously, lawmakers declined to pass a bill with the same effect from 2013 after the state’s Regulatory Review Council “unanimously advised against passage.” It is unclear what events over the next three years brought to lawmakers the compelling link between cultural anthropology and sound breastfeeding advice. However, with the 2016 settlement, Georgia joined a clear minority of states.
Although the general trend is for more and more occupations to be licensed, 46 states do not require lactation consultants to be licensed.
Of course, the decision does not make it unwise to take a minority position on a political issue. Still, some, like Mary Jackson, a Georgia woman with three decades of experience counseling nursing mothers, were naturally interested in the state’s rationale for barring them from their chosen profession until they had completed Byzantine studies and mentoring.
In 2018, Jackson filed a lawsuit against the Secretary of State of Georgia (first Brian Kemp, who is now Governor, then Brad Raffensperger), challenging the law under the Georgia Constitution as a violation of her right to due process to practice her profession. Jackson and her co-plaintiffs were competently represented by attorneys from the Institute for Justice, which has long campaigned against the expanding reach of professional licensing systems.
The legislature responded with paradigms. Protect the law[s] the health, safety and welfare of the public,” it said. Had it been a federal case, the matter might have been settled.
The US Supreme Court has recognized that a law can be “unnecessary” and “wasteful” but still count as sound economic regulation. And as Georgia’s chief justice noted, Georgia recognizes public health, safety and welfare as apparent valid reasons for legislation.
But that was not the end of the matter, for Georgia treated Jackson’s profession not just as an economic interest that needed to be rationalized away, but as an “inherent” right that the state could not arbitrarily encumber. Therefore, the court conducted a more thorough examination.
First, Jackson and her co-plaintiffs had to prove that the law unreasonably restricted their pursuit of lawful employment. The legality was not disputed, and the court had no difficulty in concluding that the plaintiffs were tainted by the law. While plaintiffs remained nominally responsible for proving their claim, the court subsequently considered the proportionality of the burden in relation to the state’s justification.
Like the US Supreme Court, the Georgia Supreme Court rejected any ability or willingness to engage in an ad hoc reconciliation of interests. However, in the absence of evidence that the occupation posed any particular risk to the public good, the court refused to accept as sufficient the Foreign Secretary’s claims that quality had to be assured.
The state did not claim that the profession of lactation consultant had inherent risks to the public. The court, for its part, found that the practice was nothing “inherently harmful” and that an unlicensed counselor could at most not help a patient but actually harm him.
The court backed up that conclusion, noting that the Office of the Secretary of State presented no evidence of harm from a person providing breastfeeding care. Given the speculative nature of the damage and the significant restrictions placed on individuals wishing to enter the field, the court concluded that the law would do more harm than good.
By subjecting an economic rule (that involved no suspect classifications) to extensive judicial review, the Georgia Supreme Court did something the US Supreme Court has been reluctant to do for a century.
Further legal disputes will only show how strict this standard is. Jackson and her joint plaintiff benefited from the Secretary of State’s decision to withdraw his motion to dismiss and investigate. Consequently, the plaintiffs’ case was made easier by being able to refer to a file in which there was no evidence that unlicensed lactation consultants had harmed mothers or babies.
The result is thus based on a mixture of law and fact.
Whether things would turn out equally well for hypothetical prospective plaintiffs who must file a motion to dismiss is an open question. Such requests are typically decided as questions of law without reference to evidence. How far will Georgia courts go in challenging the state’s claim that a profession poses unique risks to the public that warrant regulation?
The court found that “there is no obligation for the government to collect or submit evidence in the course of passing such an ordinance”. How do courts assess the appropriateness of the regulatory effort in relation to the specific risk of damage?
Perhaps the latter is inherently a mixed issue of law and fact, requiring disclosure by the parties. Perhaps Georgia will adopt something like the “congruence and proportionality standard,” which the Supreme Court developed to limit Congress’s powers to enforce the 14th Amendment on an evidence-based basis.
Georgia definitely needs to develop a consistent means of assessing the legitimacy and appropriateness of different regulatory burdens on individuals’ right to lawful employment. But it doesn’t have to develop these standards from scratch.
The Jackson decision demonstrates the court’s appreciation of the story’s relevance to the inquest. And while the Georgia Supreme Court failed to heed the guidance of its national counterpart on economic freedom, it appears poised to follow recent US Supreme Court case law that reaffirms the primacy of history and tradition.
The Jackson decision represents a form of substantive due process at the state level, in which the court recognizes unenumerated rights within the concept of “liberty” based on the state’s legislative and judicial history.
This approach is consistent with the reasoning in Dobbs v. Jackson Women’s Health Organization, which took pains to use the historical record as a guide for determining the rights inherent in our national conception of ordered liberty.
Legislation and jurisprudence to date in Georgia will provide at least a starting point for assessing which professions require greater regulatory oversight.
At the end of his book, Sutton briefly describes how the US Supreme Court’s refusal to provide meaningful protections to homeowners triggered a series of legislative and judicial responses in states that better protected the right to real estate. Perhaps the right to a legal profession is now on a similar path.
Reasons reviewed and accepted by the state supreme courts are not left in this field forever. Sutton reminds us, “When the state court is enforcing a federal law, previous state court decisions in that area often influence the decision.”
As Georgia and its sister states develop a reasoned framework to protect the right to practice, the approach will gain more adherents, and the US Supreme Court could be one of them.
This article originally appeared in The Daily Signal