This article examines a current circuit split regarding the constitutionality of restrictive occupational licensing schemes that exist only for protectionist purposes. The Sixth Circuit in Craigmiles v. Giles and the Tenth Circuit case Powers v. Harris, are cases that revolve around similar facts but reach opposite outcomes. The two cases profile state funeral industry licensing restrictions. In both cases, the plaintiffs were penalized for selling caskets without state-issued licenses. Though licensing restrictions in the funeral industry affect most Americans as consumers, the scope of this circuit split reaches into nearly every industry. When businesses lobby governments to enact legislation, they establish large, often insurmountable barriers to competition. Drawing from scholarly work in this area, this article argues that protectionist licensing schemes produce numerous negative effects and infringe upon individuals' right to earn an honest living. This article also looks to a new funeral case that has emerged, which will hopefully have a positive impact on the case law surrounding protectionist occupational licensing schemes. “[W]hile baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.” - Tenth Circuit Judge Tacha, Powers v. Harris
Grave Consequences for Economic Liberty: The Funeral Industry's Protectionist Occupational Licensing Scheme, the Circuit Split, and Why It Matters,
5 J. Bus. Entrepreneurship & L.
Available at: https://digitalcommons.pepperdine.edu/jbel/vol5/iss1/5