Sec. 402. Statement of findings and purpose
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/bill/117/s/2039/is/section-402·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Congress finds the following: The prevalence of occupational licensing has increased dramatically in recent decades, in part because private interests have sought licensing in order to limit competition. Occupational licensing often limits opportunities for workers, frustrates entrepreneurs seeking to introduce new business models, and raises prices paid by consumers. Licensing should be imposed only to combat real, substantial threats to public health, safety, or welfare and only where other less restrictive regulatory alternatives are insufficient to protect consumers and serve the public interest.
Regulators should consider a range of less restrictive alternatives before enacting an occupational licensing regime, which may include inspections, bonding or insurance requirements, registration, and voluntary certification. Voluntary certification provides a particularly significant alternative to licensure, as it allows market participants to signal to consumers the attainment of personal qualifications without limiting entry into the marketplace. The failure of State governments to adopt less restrictive alternatives to licensing, and less burdensome requirements in those areas where licensing is deemed necessary, has resulted in significant costs to consumers and the broader economy.
The United States Supreme Court responded to these concerns in North Carolina Board of Dental Examiners v. FTC, 135 S. Ct. 1101 (2015), holding that self-interested licensing boards may be subject to liability under the antitrust laws, but that decision has also created significant uncertainty for the States and their licensing boards. Some States have responded to the decision in North Carolina Board of Dental Examiners by establishing a layer of bureaucratic oversight that merely monitors board actions for consistency with State licensing laws.
This response is a missed opportunity for reform, as it does not address the specific competition concern raised in North Carolina Board of Dental Examiners or the underlying problems with over-reliance on occupational licensure as a regulatory approach and with overly broad enforcement of licensing laws as a means to regulate commercial activities outside an occupation’s scope of practice. Legislation is necessary to clarify the requirements of active supervision, both to offer States a clear and certain mechanism to immunize their occupational boards and to make clear that mere bureaucratic oversight to ensure consistency with State licensing laws does not suffice to confer immunity.
This title is intended to offer States a choice between two alternative routes to achieve immunity for their occupational licensing boards—either establishing a mechanism for meaningful active supervision of licensing boards by State officials or establishing a mechanism for meaningful judicial review of board actions in the State courts.
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- 135 S. Ct. 1101
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Sec. 402
Statement of findings and purpose
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