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PaperclipPerfector  1yr ago (text post)   25197 thread views

Culture War Roundup for the week of October 30, 2023

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Is it a blunder if such policy would be unconstitutional?

“Interstate commerce” may be pretty tortured, but license to practice within state borders is certainly not a central example. I’m not sure you could destroy the state ability to regulate work without also destroying its ability to regulate…anything.

Forbidding protectionist licensing schemes seems squarely within the Dormant Commerce Clause powers of the federal government:

The Dormant Commerce Clause, or Negative Commerce Clause, in American constitutional law, is a legal doctrine that courts in the United States have inferred from the Commerce Clause in Article I of the US Constitution.[1] The primary focus of the doctrine is barring state protectionism. The Dormant Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. Courts first determine whether a state regulation discriminates on its face against interstate commerce or whether it has the purpose or effect of discriminating against interstate commerce. If the statute is discriminatory, the state has the burden to justify both the local benefits flowing from the statute and to show the state has no other means of advancing the legitimate local purpose.

For example, it is lawful for Michigan to require food labels that specifically identify certain animal parts, if they are present in the product, because the state law applies to food produced in Michigan as well as food imported from other states and foreign countries; the state law would violate the Commerce Clause if it applied only to imported food or if it was otherwise found to favor domestic over imported products. Likewise, California law requires milk sold to contain a certain percentage of milk solids that federal law does not require, which is allowed under the Dormant Commerce Clause doctrine because California's stricter requirements apply equally to California-produced milk and imported milk and so does not discriminate against or inappropriately burden interstate commerce.[2]

The question becomes whether states have a legitimate compelling interest in having separate regulatory regimes, even if they have fundamentally the same actual standards. I would think not. States could probably carve themselves out some exemption in cases where they demonstrate materially different working requirements though.

Thanks for linking this, that was useful to know the exact way the law could apply to state licensing regimes.

Congress has multiple levers for encouraging state compliance. But no, none of this is really constitutional.

The political solution should be at the state level, but if congress is going to keep insisting on messing with medical care at the national level I don't see how this is much different.

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