Transcripts For CSPAN2 Discussion Focuses On Occupational Licensing Requirements 20170809

State and local licensing requirement for jobs such as cosmetology. Labor secretary Alexander Acosta said lawmakers should work to get rid of unnecessary state licenses. This event just getting underway. Live coverage on cspan2. This project launched in 2016. To foster a conversation around regulatory excess and the harm it causes. They consist of 12 working groups, each composed of experts in specific fields of regulatory law and policy ranging from environmental and energy to race and trade in june of this year from each of the working groups started to release their papers, podcast and videos which among other things can be found on our website, which is a great project. Org. I invite you all to visit the website. Todays panel is the first of these conversations for the antitrust Consumer Protection working group and is devoted to occupational licensing and other restraints on competition. I am now going to turn it over to my comoderator and our hosts were today, lisa kimmel. Thank you very much, koren. My name is lisa kimmel and im senior account with your in the antitrust group. Like everyone else that you hear from on the panel today, before joining the law firm i spent some time at the federal trade commission where was the antitrust advisor to former chairwoman edith ramirez. I worked very focused on antitrust and competition matters in that particular sector in the intersection of intellectual property. We really want to welcome everybody to the firm and thank you for the opportunity to host this program. With that, ill introduce our very Strategic Group of panelists. First of all, we have a full house and. Policy planning which i believe is in charge of liberties now. Also an attorney advised former ftc commissioner Orson Swindle and she began her ftc career in the general counsels office. Let me also add before joining the ftc for that first stent, she has spent five years at the u. S. Courts of appeal for the d. C. Circuit serving as a law clerk and staff attorney. She graduated with distinction from the Antonin Scalia law school at George Mason University and with honors from university of virginia. Thank you for joining us and well, to the program. To my immediate right we have Professor James cooper, professor cooper is an associate professor of law at Antonin Scalia law school at George Mason University. James brings over a decade of public and private sector expensed as research and teaching work. James also spent time at the federal trade commission where he served as the deputy and acting director of the office of policy planning and is an attorney advisor to the federal trade commission or bill. I wanted note james also spent some time here with the antitrust group, a fairly fine firm Crowell Moring in his earlier career. We are happy to welcome james back. His research at the law school focuses on competition and Consumer Protection issues including privacy, data security, state restraints on competition, behavioral economics and antitrust treatment and prices commission. James has a ba from university of South Carolina and a phd in economics from emory university. James holds a law degree magna cum laude from the Antonin Scalia law school at George Mason University. And last but not least we have sarah allen, a Senior Assistant attorney general in unit manager the antitrust unit in the Virginia Attorney Generals Office. She currently cochairs the National Association of attorneys generals state action working group, so the right person to be on this panel. She successfully argued the Summary Judgment motion and Fourth Circuit appeal on behalf of of the virginia board of medicine in six of his individual Board Members against an antitrust claim that a chiropractor who was sanctioned by the board for practicing outside the statutory scope of practice. Most recently she represented the commonwealth of virginia in the federal and multistate challenges to the aetna humana and anthem Cigna Mergers and has worked with federal enforcer to challenge and settle other mergers. Before coming to the Virginia Attorney Generals Office sarah has spent time eight years at the federal trade commission. So thank you very much and with that i will turn it back over. Great. The format is will try to do interactive discussion led by the moderators and then will observe about ten to 50 minutes at the and for questions from the audience. By way of background occupational licensing and state restraints on trade, competition have received significant bipartisan attention in recent years. For example, in 2015 the Obama Administration released a report outlining the growth of such restraints, its cost and benefits, the impact on workers and work arrangements. Earlier this year acting chairman ohlhausen through the ftc launched the Economic Liberty Task force which im sure she will tell us some about. So chairman ohlhausen, if you could start us off to just give us a little overview of what the main concerns are in issues with respect to restraint. Thank you everyone and for you froze yesterday picked as one of my favorite topics come something into to my heart. I spent all of my career focusing on it. Its no accident that it something the ftc has focused quite a bit on. We are in agency that this Consumer Protection and antitrust. The occupational licensing kind of is at the intersection of those two issues. Where very often these restraints on entry to a profession are put forth and necessary for Consumer Protection reasons. I think were particularly well place as an agency to think about that and to say does that make sense to us. So the issue is occupational licensing i think has come to the forefront because occupational licensing has exploded. So when back to 1950s, Study Suggests about fewer than 5 of occupations required a license. Today that number is approaching 30 . So what changed in that time. And the number of occupations in the types of occupations that licensing has expanded to has gotten i think beyond what we can say of course you want your jobs to be license, you want someone whos doing a health and safety related thing to be licensed but we have cases where florists are license, where interior designers are licensed, or hair breakers are licensed. And so you start to say what is the rational for that, why is it happening . That is where the antitrust side of the analysis comes into play. One way i have characterized this is as the antitrust enforcers we need to be alert to private anticompetitive conduct but the actions of the government can also be anticompetitive. In a way that is a lot less likely to be eroded by market dynamics. I often called what i call the brother may i problem, and its where you need your competitors permission to enter the market. Thats one of the issues weve seen when we have boards of active Market Participants saying well, you need this license or the practice of our North Carolina dental case that we won in the Supreme Court they said the practice of dentistry now includes tooth whitening in the state of North Carolina. What are some of the problems . I think the problems are manifold. One of them certainly is anticompetitive problem where you say consumers may be paying more for a service or have fewer choices or there may be less innovation happening because of these owners licensing requirements. Theres also an impact on workers where workers have lost the ability to enter a field more freely. I see clark neeley back there. Clark has paid wonderful attention to this issue and destined fantastic work in this area. But i think thats what of the issues here is what about the individual worker and their ability, even if they have a skill that we all agree requires a license, if they are moving from state to state, they have to undergo that licensing all over again. Certainly that isnt necessarily an ftc antitrust issue. We have focused more on where you have an active Market Participants saying you cant compete with me, but, on our advocacy role at the ftc thats what weve tried to talk to states and really even other parts of the federal government about some of these issues. They are hitting certain populations quite a bit more onerous leave than others. One is believe it or not military spouses, members of the military move a lot, get deployed to different places around the country and the trailing spouse has a license, a job requires a license. They have to get relicensed, recertified, undergo time to train even if they been active in the field already. It has led to i think its one of the contributors to the fact that youve got an appointment rate of almost 20 in that population. So thats why ive launched my Economic Liberty Task force at the ftc. I see it as an attempt to shine a real spotlight on this issue. Certainly we can continue to bring Enforcement Actions where appropriate but it is mine and advocacy role. I talked often about being a coalition of the willing because i think a lot of groups, consumer organizations, you mentioned bipartisan appeal of this has extended to a lot of the interest in this topic to a lot of different areas and i worked with states, Governor Scott walker and i get a joint oped on this issue. I think were in a particularly good time to make progress on this issue, but the problem is the lack of competition, the higher prices, lower innovation but also the effects on the workers. Thank you, acting chairman. Sarah, we are really interested your from the states perspective on the occupational licensing issues the acting chairman take you to the Federalist Society and koren wongervin and george mason for inviting me to be on the panel today to be the spoiler on the panel. Id like to start with a disclaimer that the opinions express today are only mine. They dont reflect necessarily the opinions of virginia ags office or any other participant in the National Association of attorneys in general. And it is a little odd for me because at 95 of the time i am the antitrust counterparts are or enforcers like the federal agencies that we work with quite often, the ftc and dha. But in this one little area with flip and would become Defense Attorneys for state boards and state agency that arches up at a competitive behavior the antitrust experts. So being the state apologist on this panel is a little backwards to me, but so is the position of otherwise staunch state rights advocates like senator mike lee and senator ted cruz, but we will talk about it occupational licensing bill in a minute. So my personal perspective from the stateside is that i see a lot of value to this wider philosophical discussion about whether to many occupations required licenses. I also basically agree with the Supreme Courts decision in in c versus dental pick but at the end of the day it should be left up to the states to decide how to structure their economies, how to structure their government and how to provide for the health and safety and welfare of their citizens. I applaud the ftcs efforts to educate state legislatures and others about the dangers to the National Economy of too much licensing. I support their enforcement efforts. However, i do not support the federal government attempts to preempt states abilities to decide these issues for themselves or to dangle state action immunity as a carrot in order to coerce states into provide active supervision and the merit it sees fit or to adopting its glossy about the appropriate professions to license. Under current case law principles of federalism allow states to decide which occupations they will license as opposed to professions that only require certification, registration or have no restrictions at all. Once a state legislature has authorized a licensing scheme with a board of active Market Participants as Board Members, the only question that remains in order for the board and its members receive state action immunity are whether they meet the two prongs, which is one of them was the board following a clearly articulated and affirmatively expressed state policy to displace competition, and whether the board was actively supervised by a disinterested state official to ensure the boards actions were consistent with that policy. There is some ambiguity in the nc dental opinion about whether the active supervisor only had to determine that the boards actions were consistent with state policy or whether there to go beyond that to look to see whether it was unduly burdensome. But there is no requirement that the active supervisor inquiry into whether the board used the least restrictive alternatives to achieve the legislatures goal. There is no ability for the active supervisor or the state courts to disregard the state legislatures intent to displace competition in favor of a licensing scheme. Moreover, states could easily decide to give it all of their state boards and switch to the oversight of license occupations from the boards to traditional state agencies with fulltime salaried state employees. That gets rid of the need for active supervision but has many disadvantages, the most obvious being it would add millions to the budget to employ all those people because state Board Members currently serve with no pay in most cases. It would also not necessarily change the state legislatures philosophy about which occupations to license. While making it harder to actually maintain an antitrust challenge against the state. While it would take care of the problem of Board Members acting in their individual selfinterest, it would not address a different problem which is regulatory capture of the state employees who start sympathizing with the people and industries that they regulate. Rather than the state one of my favorite phrases is casting a dicey cloak, a state authority on what is essentially private economic context i think thats kind of the other factor, is it truly the states of action rather than devolving that to a private actors who will often act in the own private interest. I know you wanted to wait in. Quickly respond that Board Members, if you talk to them they are really trying to do their best and the most instances. Maybe theyre acting in their self interest. Sometimes its pretty blatant like the North Carolina dentist case. I think a lot of these cases are really on the margins where they really think theyre doing the right thing. It seems a little paternal for the federal government to say should you be making these decisions . We dont think you should and we will make it so you dont get state action immaturity and lets you do it the way we think you should do it. That was my point on that. I think sarah and chairman ohlhausen covered both of the ground, but building want to add is i didnt want to make sure we are talked about occupational licensing regimes that i think sarah alluded to this that we talking more broadly not just limiting, in fact, setting up credentials and seeing if you dont get score x on your marks and you can be an attorney, or thats the quintessential case you cant be a hair braiders is done x number of hours. Thats one level that a lot of the work i did when i started at the ftc in the office of policy planning was looking at the toast of state restrictions on competition that maybe you can put them in the occupational licensing category but attorney, limits on attorney advertising. We that several Supreme Court cases on first and then issue surrounding but there still to this day state bars that try to limit the ability of attorneys to advertise. Does that fit into occupational licensing . You can maybe put in that but its a different animal, minimum service requirements. There was an issue with that when the internet was burgeoning and online real estate providers, and the traditional real estate providers didnt like that. What did they do . A try to increase state set up minimum requirements that sit if youre going to be Real Estate Agent, youve got to do house showings injected all these sort of things, why . To prevent this intermediation. Again, in several occupational licensing . And wasnt about when you can be a Real Estate Agent or not. It was regulations that are promulgated by these boards. North carolina dental wasnt so much of it who could be a dentist and who couldnt be. It was in some ways about scope of practice but had a lot to, so the only thing i want to emphasize, i think we touched on it, in my view most of the mischief of these boards do, i think all the points that chairman ohlhausen brought out as far as limiting economic mobility or Labor Mobility really, really important has to do with the regime itself to say youve got to have this qualification to be in this profession. Those are bad and have their own anticompetitive effects but i think to meet the core mischief here is the regulations these self and rest divorce often promulgate. Not so much the restrictions in the profession in and of itself thats the only thing i would add to that. I want to come back to the federalism issue. I dont want us to forget that, but professor cooper, we can stay with you as both an economist and a lawyer. Can you tell us what the empirical evidence on the effects of these restraints, whether, what are the potential costs and other benefits for quality and other things . Thanks. So most of these regulations, and on painting a broad brush strokes, some kind of form of the following story, consumers cant discern the quality ex ante of what provider x does. Provide x may be a dentist. They may be an ophthalmologist or optometrist. They may be an interior designer. You cant figure out before hand the quality of the service and so this leads to what economists refer to going back to the article, the womens market, the basic idea is if you cant figure out quality at a time, consumers know that, they go to the marketplace and the discount, didnt know if theyre going to get a good provider or a bad provider so theyre only willing to pay a certain price that discounts the probability. In the limit, the good providers completely exit the market because the equilibrium price the consumer is going to pay us a high enough to attract the good providers into the market and so you end up with this unraveling. Thats often the horror story that is told of justify these regulations, that we need, the market would unravel into a womens market if we didnt have this. I do want to say fares that i think these arguments and can i think chairman ohlhausen alluded to this, earlier these arguments mance some purchase when we talk about seven information as symmetries, doctors and lawyers. Of course i want to protect our bills, right . But there can be severe information asymmetries of what economists sometimes called go to doctors recommend you get some kind of treatment and you get and you get better, you have no idea what they told you to do whats right thing. You know you got better, you dont know. Even if you can evaluate, say you go to a doctor or maybe an attorney doing some kind of complex transaction, maybe custody, something where the stakes are high or your life in a capital murder case, you may find out after the fact that my lawyer, my doctor was no good because you die or you get the death penalty, right . If the cost offigure out, we think i can figure out this wasnt, that this is a bad service and then reputation and market place can take effect. But when the costs of figuring that are really high maybe this would want to step in and say okay, were going to set some kind of level. Should the states set the level or have private certification. Those are certainly areas of their debate. Although this argument may have some purchase for these severe asymmetric information problems, its harder to make that, the hair braiders, the interior designer. You go get your hair cut, you get a bad haircut, you can know that pretty quickly. I figure it out and the cost relatively low. May be leaving aside for states of job interviews but for the most part these asymmetric information theoretically this idea of a lemons market for hair braiders or interior designer to barbaras doesnt hold much water. Thats kind of the theory behind it. They are pretty much, suggest what you would think. The ftc did a lot of cutting edge work back in the 80s mostly an optometry to find, these were not quite occupational licensing but had to do what were called commercial practice restrictions what i doctors were allowed to partner up with lenscrafters. In fact, just a little bit of trivia, virginia you still can. If you go to lenscrafters notice you walk on the side door because the dr. Smith can illegally associate with lenscrafters. There are still some states that the socalled due to oracle twto door requirements but thers good evidence in the 80s that these restrictions and restrictions in advertising, that are promulgated by these boards dont do much. Theres also more modern literature and i would commend everyone to look at in president obamas council of Economic Advisor report from last year, they do a great review of the literature the old stuff and the new stuff, and its almost 100 unanimous that theres no impact on quality from these licensing, no matter how you measure it. And that these laws do tend to increase price. I think the price effect is a little, they certainly limit mobility. They certainly limit entry. The Price Effective maybe not as robust as the lack of called the fact that is in there, but one thing i would want to add is just because you see a licensing regime increases the level call it doesnt mean its good for consumers either. Because everyon i do and doesno buy a mercedes, right . You could make a regulation that every car must have all these features which means we all think 50,000 or a car and its a really nice car. The same thing could be true, you could force anyone to go to an ophthalmologist who has spent five years boardcertified to get just her eye exam. Now if anyone has been together eye exam recently due to stick your head in something with the receptionist does it for you and they get your prescription really, really close and i doctor just kind of makes it a little bit. Maybe if i called it a go to the ophthalmologist but she would all be forced into Higher Quality . It shouldnt be the case. So anyway i will just leave it at that but thats kind of where we are. I think the empirics say strongly that these tend to limit competition dont really provide any benefits for consumers. I want to follow up on the price effects. I know in the obama report of the you said Something Like the cost to consumers was around 100, 100 million. Can you talk more, you said about i mean, again i would commend anyone to look at that, great literature review. I think its hard to tease out price effects in this. Thats the main problem. Im not exactly sure where they got that, the number. Theres no doubt these are accosted to consumers. I would just as an economist and reviewing the literature i would think the price effect literature is perhaps not quite as robust but it is there. I want to be careful with what im saying. Not so much on the price effects but asking empirics, what do we know. I think what are the most interesting factors or fax that ive seen is that only about 600 occupations are licensed in every state. But there are over 1100 occupations that are licensed in at least one state. So to the extent that we are saying well, other states like for example, other states than North Carolina you could go to regular mall kiosk twos whitener, where we sing bad effects on consumers health. The answer was no, we work. I think you start to put your finger on this great disparity, so we have 60 words seems like every kind of agrees ccb license and as you get further and further out from the core area where you got a lot of states agreeing, i think thats where you can always put your finger on like theres probably not a really good health or safety or quality argument for having that, that license. Just real quick add in to kind of echo that. Back to what i said before, we have to think about where the mischief in these boards come from. Maybe do we agree may be a dentist should be license . Maybe. Thats a reasonable position. There are arguments on both sides, and even if we agree that dentist should be license and they may have to have some minimal quality should they have to say kiosks, and by the way, you cant get your consumers, you can get your teeth white native or else except my office for a lot of money. I would say that North Carolina and excellent cases show what active supervision is really good idea for these boards. Because that would never have happened if there was a disinterested state official that was actively supervising that board. Then we would never all this kerfuffle. You know, i dont have a lot of substantive things to add. I which is like to credit my colleague, victim, the current chair of the antitrust task force and works in the ags office and he says whenever you start wondering whether this occupational regulation should exist, just substitute lawyer for whatever occupation theyre talking about and then you will probably be fine with it. [laughing] one other thing that i just want to make and its not necessary and binary choice of licensing or no licensing. Theres also the issue of how strict a licensed to you need and that something the ftc is paid a lot of attention to as a line people like practitioners or dental therapists, dental agendas to practice to the top with her license. There was a case that preceded the North Carolina dental case called South Carolina dental and we settled with the dental board there, but the issue there was the state had said weve got a problem with giving dental care to poor children, very Poor Dental Health in the state, and this gets just were not getting basic cleaning and screening kind of stuff. So they rescinded the requirement that a dental hygienist had operate under the immediate supervision of a dentist when providing that care here so that the hygienist could go out into the poor schools and give these kids some basic dental care. And the dentist went and reinstituted that requirement as an emergency regulation. Could it be clear the state want something different. But the thing there was the degree of licensing. It wasnt say they shouldnt be any licensing. It was allowing them to practice we done a lot of that. What are the projects i worked on when i headed out of the office plank was allowing Nurse Practitioners to practice in bigbox stores like cvs, target, things like that, where you really are expand access to people who couldnt take time off from work, may not have Health Health insurance. On sunday morning the kids got, and mother of four, seeing all this, you know, its Christmas Eve and you got an eye infection. The doctor is close. You do want to go to the emergency room. You want to have this kind of care. I think thats the other thing is expanding access to services and to care, most acute in the health space. Were going to be moving into the world of telemedicine. Were going to have to get a licensing right to allow that to happen, to allow the Nurse Practitioner to be with the patient when the doctor is diagnosing remotely. So its not a binary thing either. Lets come back to the federalism issue and professor cooper, id like to hear from you. What role is there for, if any, for federal antitrust law and what about federalism . Thats a good question since this is sponsored by the Federalist Society, right . Anyway, i think again, weve already started at least to touch on this but the state action doctors, magic people are interested in this in our panel, you all may, many of you already speak to this but apologize if this ithis is a review but the e action doctrine is really kind of a compromise. The Supreme Court has crafted a compromise between the National Policy in favor freemarket competition as evidenced in the federal antitrust laws and federalism, which is part of our system, part of the constitution. What if the state action doctrine, how do you apply it, sarah of the do this when she talked dental, is that there are two prongs, was called clear articulation, the action that come if you start with private actors or a board, is what theyre doing, is it pursuant to a clearly articulated policy where some of the litigation issues come in here and the ftc with putney and there have been, what is, how specific the policy have to be . Do you have, does it have to be comedy have to be acting, two states have to spell out precisely . If you go beyond that youre in trouble, or i think its a generally the idea reasonably foreseeable but theres always some which was it has to be you cant use the states that i can regulate so that i can do anything. There has to be a state policy that says were going to displace competition. Then theres the active supervision problem. Again, something the Supreme Court hasnt elucidated with the needs in detail. They have said a lot about what active supervision means. Im sorry, what clear articulation means that not what about active supervision. North carolina dental was a landmark case because of said self interested boards would be subject to this. Going back, before North Carolina dental, it was clear that the municipality source subject only to this clear articulation. So if it down decides to limit competition, garbage, who can pick up garbage, we dont need to have someone supervising the municipality of the misspelled is not sovereign so they dont get, then have the benefits of federalism but i either acting pursuant to state policy thats okay. Thats enough. Until North Carolina dental rolled about it was unclear whether the self interested boards would be more like it down and just be acting, if youre acting pursuant to state policy thats enough. Did you just go out and license and regulate how you want to. Or with the consent more like private actors and what was a landmark in something again the federal trade commission has been at forefront of trying to push this and find cases to test this proposition. What was revolution about North Carolina do is they suggest if there is a board that is composed of self interested actors, a decisive majority who control, who are active, then will just treat them like a private cartel, like a trade association and, therefore, theyll be subject to active supervision. Thats kind of what are now. Thats how the Supreme Court has made that balance, and now with North Carolina dental and in many ways where having this panel and ive been on several panels with sarah about this is that it has opened up a whole pandoras box of federalism issues. How are states going to implement this . What are they allowed to regulate the professions . This was front and center in the dissent in North Carolina dental written by Justice Alito about, i am paraphrasing but this is a state issue, states regulate profession forever and if they want to say teeth whitening is a practice of dentistry let them do that and let them a lot dentist, practicing dentists comprise the board to do that. Some of the boundaries, that will be one issue. What does it mean to be actively supervising, how expensive will that be for states . Will that mean they will have to dismantle some of these licensing regimes cracks another issue, something of written about, shameless plug, is what is antichris antitrust inquiry u look like . Weve now they get. Lets see you litigated the substance of North Carolina dental and jetta do it under a rule of reason. We know from National Society professional engineers and other cases that you dont let noncompetition concerns into a inquiry. I so want to regulate the use of teeth whitening because i was concerned that consumers are going to be harmed because they would have too much fluoride or too much oxidation or whatever, they would burn their gums, whatever it is. All that may be true but that is typically, that would not be a justification just like the engineers cant say we are worried that bridges are quite authentic the dentist gets a we are worried consumers burn their gums. That is a very unanswered question as to what sort of defense is once youre to litigate the substance of this. What are the defenses left for the board . I argue it could be the factor per se which case it would lead to whats called antitrust preemption but thats another issue. But i will just kind of leave it there. Not only, i mean, boards are required to follow state law. So where is, where does that fit in to their dissent under a full blown reason of analysis . The board was saying i was following the law and you are not letting me put on a defense. I do have a big problem with National Society, of professional engineers saying that, if the legislature has made the decision to restrict competition for health and safety reasons, it wasnt the boards decision. It was the state legislatures decision. So why are you making the board defend the legislatures decision when they had no discretion whether not to follow that will . Its a very complicated issue and its really unfair to state boards and state Board Members to have to defend that. Since nc dental has been pushed back from individual Board Members were no longer willing to serve on state boards because they are individually liable for treble damages if they are individually sued like they were in the case i was involved in. And some states constitutions dont allow them to indemnify Board Members. They are not getting paid to do this. They are doing this as a Public Service and then they will be hauled into court and made to defend a fullblown rule of reason antitrust case with one hand tied behind her back. Its not a workable situation at all. I dont know what he wanted to get into the bill. I have one thing it fits in well with what i completely it we go back to history of the doctrine a lot of it was motivated by a desire so lochner said you can use process so lets use antitrust laws to go after state law. In some ways, not a somewhat, in very real ways the state action doctrine was in the way to cabin an attack on states, state sovereignty in that respect. Now with North Carolina what youre saying is we think about what a rule of reason looks like, we would be back, and you can say whether its good or bad. The argument whether my faculty says lochner was, theres nothing wrong with lochner. So what we would have without a rule of reasoning inquiry with a federal court review weighing a states, a state legislatures decision to say we think the injury should be exit we think health and safety reason should be, as of this i think it does raise a help to federal issues and how we would deal with the underlying the state action is one thing but once we get past that we can have an antitrust case. How do we deal with that and still respect federalism is a big question. Just to go back to the fundamental state action doctrine or if the state has cleared articulated that tooth white is the practice of dentistry, right, and the board just promulgates that, that meets the state action, they satisfied that, right . Because one of the things i really go the way i tried to think about how this works is going back to what the Supreme Court has said over time, which is this is supposed to assign political responsibly, not at security. So if the state itself is saying well, we think that this common practice that in every other state is come you can go to the drugstore and just get it and urges hope that we will say the price is interesting in our state, people dont like it, they can say the legislature, what are you doing . We dont like that. Rather than this murky think, some board member decided on his own. So if the state, thats what clear articulation is, right . No note. I think thats right. You dont have the active supervision but if you have spee together self interested board, your point is well taken that maybe theres nothing so the facts of North Carolina dental were different and it didnt give the board any discretion to expand or contract the scope of what of dentistry was, we perhaps would not a bad North Carolina dental because they would say i didnt really take an action. They said the scope of dentistry including teeth whitening in mall kiosk, theres no discretion the legislature did it, not the board. I think thats a fair point. It would, this would imply once again, when there is Board Discretion and that discretion violates the antitrust laws it is unsupervised discretion, then they would try to defend it at their defense with how do we get it that. We cant bring in health and safety or if we bring in health and safety, then its back to locker where you have a federal judiciary stating and saying well, we would Balance Health and safety against competition a different way than you did. Your point is absolutely right. Sarah, you mention a builder is there a recent proposal . The act was intended to take these various concerns into account. Im interested to hear your thoughts on this bill. So how much time do we have left . Because i have a lot of concern. About ten minutes left. So the bill summary states there is concern that the nc dental decision a limited state sovereignty. But this bill gives no difference to principles of is our state sovereignty. Instead it criticizes states like maryland, tennessee, montana and mississippi that managed to get their state legislatures to pass an active supervision statute this year by stating they have only established late a bureaucratic oversight that merely monitors board actions for consistency with the licensing laws. So what is the purpose of active supervision . It is to ensure a boards actions are consistent with the states licensing laws. Thats exactly what is supposed to do. It is to ensure members of the state regulatory board or private participating in his day program are following cleared articulated and affirmatively expressed state statute authorizing that activity. It is not to substitute the active supervise or judges opinion of what the licensing regime should be or the state legislatures decision. As a matter fact, this bill would subject state boards to a much higher standard to receive state action immunity and private trade associations or other private citizens acting pursuant to state policy would have to meet under the current case law. So not only does the bill summary criticize the states that a passed state action statute but the bill will invalidate those statutes. The bills requirement goes smoothly beyond North Carolina dental acquires by making on the board actions with the policies set out in section 5b will receive immunity or in other words, board actions that use the least restrictive alternative will be immunized and as i said earlier thats nt a requirement of North Carolina dental. There seems to be some significant constitutional problems with the bills requirements the state courts cannot give any deference to the state legislature or presume that the legislature determined that the restriction was necessary to prevent harm to the public Health Safety or welfare. This again allows the state court judge to substitute its judgment for the decision of the state legislature and is contrary to at antitrust. In addition there appears to be an extra requirement that the state act in good faith to implement licensing reforms in order to receive immunity for any board decision. The board also changes the standard of review to clear and convincing evidence and puts the burden on the board to show that its actions that only work to protect and identified important government interest, that the restriction was substantially related to the identified government interest, and that it used alternatives and it acted in good faith. Theres a lot of standards. The plaintiff on as to make out a prima facie case that the restriction substantial burden his ability to engage in the profession come to switch the burden to the board to justify its behavior. And at the turn substantial is not implied instance i can would cover a potentially in the restriction that it board opposes. The board must then defend its actions without the court being allowed to defer to the legislature or presume that the legislature intended to protect the public from harm or that the restriction substantially related to that presumed harm like i said before, i do like being asked to fight with one arm tied behind your back. As i can tell you from doing this, giving just one case against a board to Summary Judgment can cost several hundred thousand dollars. So efforts like this bill that will increase litigation against board will significantly add to state budgets. So not to be, i want to be too snarky about it but i think this bill highlights a common problem when the federal government tries to mandate state behavior. It really doesnt have any idea how difficult and timeconsuming and expensive it is to implement these big ideas in the 51 existing and different State Governments. And how many revisions the state codes would be required to do so. This would conflict with wide swaths of the virginia code, i can tell you that. All the enabling acts for the state boards themselves. At a minimum this bill creates an unfunded federal mandate for states to create an officer supervision of occupational boards or restructure its judicial review procedures. Like i said it will cause extensive revisions to state code. The end of the day this bill is unworkable for states implement which leads the state without any antitrust immunity to state boards decisions if the bill passes. Professor cooper . Do i have any thoughts . I do. Well, i would, i can completely understand, and im not superfamily with the bill. I look at it and i thought a little about it. The thing that, i certainly think the part of this bill that i do like is that this idea changing the challenge of intermediate scrutiny. Because with the rational basis, which is how come you challenge a state law, and irrational basis, its basically the state wins. Not always. I have been successful in some cases, but the deck is stacked against. I like that notion of intermediate scrutiny Type Analysis where the state cant just say limits market, the legislature said, so we win. Exaggeration labette but thats not too much of an exaggeration. Actually happened to maybe justified these. Thats just me as kind of an economist thinking that some of these laws are bad bu but i understand the federalism, certainly understand the federalism point. The only thing i would say is kind of beyond just the substance of this. It is amazing to think, i think when i left this place here and went over to the ftc and so working in the office of planning and working on state restricted competition, fastforward many years, but here we got a Democratic Administration, a very influential report, that is fairly critical last year, not this year. I know theres not a Democratic Administration. I see a few last year theres a Democratic Administration releasing a fairly influential report on occupational licensing that that is somewhat critical r pointing out that a lot of improvement, and then we have three influential republican senators introducing a bill that takes serious aim at the problem. I think the fact its on a National Stage now and i think theres bipartisan consensus that things have gone awry at the state level with occupational licensing. Something needs to be done. Im not exactly sure. Im at antitrust lawyer so i like it as a tool but i think theres a lot of things to like in this bill, stay tuned. Thats where i am with it. Well, certainly the bill, the goals of the bill are very consistent with what the ftc has been doing both on policy front and on an enforcement front. One of the things that im glad to see it does preserve the ftc section five authority which we dont get treble damages, our cases dont seek money in these situations. I do want to preserve some editors oversight but some insensitivity to some of the difficult it creates for the states. But i do think james, you put your finger on it. I think that, and its a signal that a lot of people are saying this is a problem for consumers, a problem for workers, a problem for the economy. So we need to figure out how do we fix this. I will add that parts of the bill that the senators just introduced are from a model bill, and im blanking on the name, by an organization with the certification, the least restrictive alternative, the list, most restrictive being licensing, and several states actually did introduce a bill that was based on that model bill this past session. As far as i know not a single one past. I mean, state legislatures are looking at these issues. They are just not there yet. Included in the bill was also mandatory sunset review for a certain number of boards every year and things like that. I think, you cant get states timely years nc dental, including virginia much to my chagrin. Well, lisa and i have a couple of the questions but what to make sure we save time for your questions. We have yes, i see one in the back and we have a mic that will go around. Just introduce yourself and where you are from. Thanks for the shout out earlier. Clark, now with get of your i want to start by saying to sarah, having worked as a around 20 as i want assure you you have no more fear of this bill getting enacted unheardof unicorns stripping the virginia countryside bear. Dont worry about that. But in all seriousness i think theres a real tension is a failure of the states to get their own houses in order. As james mentioned virtually everybody now agreed occupational regulation is a huge problem. Then write down the micro we can talk about just abuse after acoustic you do have to have a College Degree to do interdesign in florida. I could go on and on your i do want to pick up virginia but i will. Virginia is one of the last two or three states the requires a Funeral Directors licensed to sell caskets. Have a certificate of need for medical devices. I could go on but i will. As the field to get their own houses in order and if you do at that in interest in the houses in order on this front continues, i think it is a practical matter it is just going to invite federal attention that you may not want. That we have an active bill introduced the last two years, one of them went pretty far but didnt pass. We had one bill that required sunset review. I wont Say Something that is a huge problem seems an overstatement, 60 occupations are licensing everything. We could agree those occupations should be licensed. Lets pick the outliers, not Funeral Directors, and work on that. Stop making people in the profession that should be licensed to be threatened and they are going to face some digging. They should be licensed, what is that based on . I dont want to go up in an airplane phone by a lifeless pilot will be operated on by someone who is not a licensed doctor. I dont want to have a veneer put on by a hygienist. There are occupations where we can all agree there needs to be a form of licensing. The tort system is not adequate to protect against unlicensed con artists practicing in the field. Those are legitimate Public Health and safety issues that should be recognized. What do we do with the appearance that these licensings dont affect quality, dentists or lawyers. Those professions have extensive regulations, standard of care cases at the board of medicine, people that lose their license to practice law all the time. Are they perfect . No. Doctors are the best people to determine if the standard of care of other doctors is adequate. I dont think bureaucrats are the right people to determine that. What about consumers . Should there be choice for the consumers . Some may want a higher standard of care, cost tradeoff, some consumers in certain areas may be willing to accept if the risk is relatively low, shouldnt they have the ability to make those choices . That is an affluent consumer to determine those things, we thought the consumer doesnt have enough money or forced to choose the lower quality person because they cant afford anybody else. Shouldnt there be a minimum standard . When we frame it that way, you cut out the consumer who cant afford the cadillac care and we need to be sensitive to that. I also think we need to keep in mind good evidence about competition. When we see regimes that are cutting off real competition, we should be concerned and that was professional engineers saying competition will lead to worse equality because they will compete at lower prices and the bridges are going to fall down but we have strong evidence that competition has better qualities. You mentioned putney, the ftc won a victory in the Supreme Court but couldnt stop the merger or monopoly from happening. We will oversee, dont worry, it will be okay. That is a problem. So i had our economist, we have some evidence that quality has gone down. That is the other thing, competition will give the array of choice to consumers and all those things. We agree on that but also looking at the licensed or not licensed but expand what is the profession. One of the things the way i got involved in this early on was the issue of whether you need to be an attorney, most states you do not need to be an attorney. You start to look at these statutes, what is the practice of law. My favorite was it is what attorneys typically do. Maybe you could say golf is the practice of law. When you mail a letter from a real estate closing, put it in the mail, that has to be listed. How is that a sensible thing . The idea may be we want information or some sort of way for consumers to figure out whether you mentioned complications, that is fine and makes sense, but one of the issues is it is unclear why the statement is to be had, an entity that doesnt. There could be private certification. Maybe not for doctors but it is unclear whether you could say get rid of the virginia board of medicine and replace it with a private certification regime made of doctors, high professionals, a doctor could say i have been certified by the private board of approval to understand it, the fda was a large way how drones where, there were private certification, one thing we need to about is we may need a way to get out of the situation but it is unclear if we say we need something that has to be government rather than private and something to think about as we go down. You are switching one regime for another. When you have doctors deciding the qualifications for doctors and deciding who cant be a doctor you will have situations where you probably are doing things. I dont want to come out and say anything. Why is the private Certification Company better and State Government . It would allow consumers it will be a different barrier. It is a case factor having to do with the ophthalmologist coming out and saying the laser surgery, this method is no good so somebody sues in the seventh circuit. No, this is free speech, one organization just because of this, the consumer is confused. I may want to undergo this procedure even if the academy of ophthalmologists said it is not ready for prime time but the idea is consumers it wouldnt be illegal to practice if you dont have the certification, just the private certification and wouldnt have a state power that made a difference. The hardest case first when there are so many other things, makeup artists and hairstylists, social media reviews are better to provide that function and restaurants. And the consumer at the food table. People rely on word of mouth. Things that can address, start with low hanging fruit. And a laboratory in the states, you can see the quality step where in some states, Nurse Practitioners are able to practice. Saying lets visualize the perfect licensing regime to begin with. What is already working . And go after the health ones are very appealing because there is a need being unmatched. I am not ready to say doctors who perform brain surgery shouldnt the licensed. That is not the focus of the economic liberty movement. But should you be able to go to the Nurse Practitioner to get a flu shot . The answer is yes. That would be very good. We have five minutes left. Any other questions . Over here. The mic coming to you. Thank you. Todd wiggins. My question has to do with Small Businesses. The industry seems to be blowing up Small Business co. Working space industry such as we work and those shared spaces where so many new businesses were coming and that were unregulated, unlicensed probably. Number one, i am sure that is a good place to solicit services if you are a lawyer starting off but secondly, what about those organizations . Should there be regulations for who they accept to work to be in those coworking spaces . Should they be talking to attorneys about what they would consider acceptable businesses for their space . I would say i certainly wouldnt want to say that there should be regulation where they need to have government oversight, reputation, and reputation for being a place, unethical businesses, your reputation, people wont want to do their. The market mechanism i havent imagined, would operate. Much like who rents in an office or other commercial movements. I would throw out that before you have any economic you want an identifiable market failure. Necessary but not sufficient cause and do a costbenefit analysis, is this regulation going to solve the problem and not the worst . Any other questions . A few minutes left. I am melissa odonnell. My question is related to how the bill fits into the larger framework as interpreted by courts. Is it completely clear that the bill would displace the two pronged test the Supreme Court with other cases, and number 2, what would happen, promulgating a rule related to something that is not licensure . If it is promulgated, not related to licensure per se but something else, how would it fit in . Are you talking about the bill introduced in congress . I think the fundamental holding stands where a city board would need to get state action immunity so they would still need to follow a clearly articulated policy of competition and also need supervision but the way active supervision is gained would be changed through this billing, do all the things this bill says you have to do to have supervision rather than the way incidental laid it out. All the things you have to do are problematic parts of the bill. As far as the rule, the board is hampered in what it can do by clear articulation, the funeral board for having a regulation that is not enabled by any corresponding state legislation, the funeral board is my old section after i left. They wanted to see more. I agree with the ftc on that one and we withdrew the regulation and what we have done. I hope that answers your question. My reading bill, if at first it covers the licensure decision, there is section for a suggested is the other type of regulations. There are two tasks, one path to immunity however limited it may be to licensure decisions, one path is active supervision and the other is setting up action that allows consumers or not consumers but aggrieved workers, i cant practice my profession to challenge intermediate scrutiny which would completely displace the midtype of analysis with intermediate scrutiny type of analysis. That is my reading of it. I dont claim to be an expert. Please join me in thanking our expert panelists. [applause] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [inaudible conversations] [silence] [silence] [silence] [silence]. For so long womens stories, womens military stories have been discounted. And were appropriated by others and she felt the timing was right to give these a voice. And the same jobs as the men. And many of this is gone the same physical. At 10 00 pm afterwards, a return to our conservative principles in his book conscience of a conservative. How does conservatism different ramifications . There are two things doing it for the sake of that action. But as conservatives we have a conservative policy. But to set this up, in ways we can move forward. At 11 00, Robert Oneill participated on his military career and participation in his book the operator, the shots that killed osama bin laden, in my years as a seal team rader. Bringing me up to that schedule. If we know we are going to die, i said we are not going for fate but the bottom, going for the single one and drop your kids off at school on tuesday morning. That was a better alternative. Watch saturday night, followed by afterwards with senator jeff flake at 10 00 eastern and Robert Oneill at 11 00 pm on cspan2s booktv