AAI Weighs In On State Occupational Licensing Reform Debate

The American Antitrust Institute (AAI) has issued a new white paper discussing the role of federal antitrust law in an ongoing reform movement aimed at reducing burdens created by state occupational licensing laws. The white paper is titled State Occupational Licensing Reform and the Federal Antitrust Laws: Making Sense of the Post-Dental Examiners Landscape.

“We think it’s vitally important to harness policy analysis and enforcement efforts to focus attention on protecting the competitive process for the benefit of workers,” said AAI President Diana Moss. “The critical role of antitrust in this context can no longer be denied or ignored,” she said.

Workers have struggled to overcome a variety of obstacles in the modern economy, including powerful purchasers of labor in consolidated industries, streamlined workforces, and reduced bargaining power. Many believe that onerous professional licensing requirements, sometimes designed and overseen by self-interested rival professionals, are another such obstacle. Some policymakers believe that scaling back these licensing requirements would benefit competition and workers, without any sacrifice to state health and safety goals.

The white paper traces the recent history of the occupational licensing reform movement from both a legal and political perspective. Among other things, it explores case law and legislative developments in the aftermath of the Supreme Court’s 2015 decision in Federal Trade Commission v. North Carolina Board of Dental Examiners. The Court held that unsupervised state licensing and regulatory boards that are controlled by private market participants are not immune from federal antitrust scrutiny under the Court’s state-action doctrine.

“The goal was to tease out key principles from the Supreme Court’s 75 years’ worth of antitrust state-action cases and identify relevant lessons for policymakers,” said AAI Associate General Counsel Randy Stutz, who authored the white paper. “Those lessons turn out to be quite important,” Stutz said.

AAI’s entry into the state occupational licensing debate follows on the heels of other recent AAI commentaries on antitrust and labor. In April, Moss published a paper titled Antitrust and Inequality: What Antitrust Can and Should Do to Protect Workers. In September, Moss participated in a debate on antitrust and market power in the labor market.  And in October, she provided a briefing on the subject for House Judiciary Committee Democrats and the Congressional Progressive Caucus.