Can governments rely on outdated rationales to justify onerous regulation?

September 23, 2014
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In 1952, Emmett Ashford became the first African American umpire in organized baseball and Dwight Eisenhower was elected President of the United States. That same year, the Pennsylvania legislature decided that funeral homes needed to be heavily regulated. Under a 1952 regulation, funeral directors must obtain a license and build expensive “preparation rooms.” Further, they cannot have more than two locations, and they cannot serve food to funeral attendees. While the regulation may have made sense in 1952 America, technology and funeral practices have changed in the past 62 years. For example, advances in embalming have scrapped the need for preparation rooms in every facility. Despite changed circumstances, the legislature of 1952 still fusses with funeral homes across Pennsylvania.

In Heffner v. Murphy, funeral directors of the twenty-first century are asking the Supreme Court to hear their challenge to the Pennsylvania licensing scheme.  The plaintiffs argue that the regulations violate their constitutional right to due process under the 14th Amendment. A law hampering economic liberty is only constitutional if it has a rational relationship to a legitimate government purpose. The funeral directors argue that when the circumstances justifying a law no longer exist, the law no longer has a rational basis. Nevertheless, the Third Circuit upheld the law. According to the Court, “there is a fundamental difference between [laws] that may be archaic and those that are irrational for the purposes of our substantive due process inquiry.” Courts are split as to whether rational basis review only looks to the time of enactment or also includes the continuing rationality of the law’s enforcement.

Antiquated laws shouldn’t continue to badger small businesses. The Supreme Court should grant the petition and hold a proper funeral for regulations that no longer make sense.

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You can learn about Pacific Legal Foundation’s work on rational basis review here, here, and here.

[H/T: Pacific Legal]

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