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The Role of “Right to Work” Legal Arguments in Response to Mandated Business Closures Due to COVID-19

October 8, 2020


COVID-19 has resulted in business closures across the country as Governors and state health officials attempt to prevent spread of the virus. Resistance to these closures engenders legal arguments grounded in economic due process (EDP) and the “right to work.” These arguments arise in the context of economic regulations, including occupational licensing rules, which enable individuals to become doctors, lawyers, pharmacists, and more upon satisfaction of state requirements. These requirements protect the public by ensuring that only qualified individuals hold licenses. However, in some cases, these requirements become onerous; individuals may challenge burdensome requirements as violating due process by preventing attainment of a chosen occupation – i.e., the “right to work.”

The notion of a constitutionally protected “right to work” has been nullified since the end of the so-called “Lochner era,” named for famed Supreme Court case Lochner v. New York (1905). In Lochner, the Court invalidated a law setting maximum work hour limits for bakers, concluding that the law unreasonably interfered with freedom of contract, violating due process. The Court used this reasoning to invalidate several economic regulations in the decades following Lochner. In 1937, however, the Court switched course in West Coast Hotel Co. v. Parrish (1937), upholding a women’s minimum wage law and explaining how the individual freedom to contract could be restricted. West Coast Hotel Co. ended the Lochner era and the Court’s close scrutiny of economic regulations. Since 1937, the Court has not invalidated a state or federal economic regulation on due process grounds.

EDP arguments can promote health equity by curtailing licensing requirements that limit occupational choice, income, and more. However, EDP arguments can also invalidate closures and other emergency measures in response to COVID-19, as business owners argue being forced to close down is a violation of the “right to work.”

Occupational Licensing
A prime example of this issue arose in Patel v. Texas Department of Licensing and Regulation (Tex. 2015). Commercial eyebrow threaders (estheticians who remove excess eyebrow hair with thread) sued the Texas Department of Licensing and Regulation (DOLR) after it required threaders to obtain cosmetology licenses. Obtaining such a license requires, at minimum, 750 hours of approved training and passage of a mandated exam. As DOLR admitted, over half of the required hours did not apply to work done by threaders. The Texas Supreme Court agreed with the threaders, holding that the scheme violated the state’s constitutional due course of law provision.

Other courts have utilized similar reasoning. In May 2020, the Georgia Supreme Court addressed lactation consultant licensing, holding that Georgia’s constitutional due process clause protects the right to pursue a chosen occupation free from unreasonable government interference. That same month, the Pennsylvania Supreme Court held that a short-term vacation rental manager raised a justifiable claim that broker licensing requirements were unconstitutional as applied against her under Pennsylvania’s constitution.

Business Closure Orders
While challenging certain licensing requirements may advance EDP arguments on a state-by-state basis, lawsuits contesting COVID-19 business closures raise the stakes. In County of Butler v. Wolf (D. Pa. Sept. 14, 2020), federal district court Judge William S. Stickman IV struck down portions of the Commonwealth’s business closure orders as violating the Fourteenth Amendment’s Due Process Clause. Noting citizens’ rights to support themselves via chosen occupations, Judge Stickman determined that, to the extent closure orders distinguished between “life-sustaining” and “non-life-sustaining” businesses without clear definitions, the orders were arbitrary. While these pandemic prevention measures constituted “good intentions toward a laudable end,” the court sided with businesses and individual rights.

The potential for EDP arguments to address onerous licensing requirements may provide wider access to gainful employment, which could contribute to health equity, but these arguments can also pose challenges to government’s ability to take rapid action in emergencies. With ongoing legal challenges to mandated business closures due to COVID-19, it may not be long before the nation witnesses a resurrection of a Lochner-esque “right to work.”

This post was developed by Jennifer Piatt, J.D., Senior Attorney, Western Region Office of the Network.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.