The Right to Earn a Living: A Revolutionary Idea in Tunisia and America

Revolution against tyranny has blazed across North Africa and Arabia, as President George W. Bush envisioned in his idealistic second inaugural address. The conflagration was lit on December 17, 2010 by Mohamed Bouazizi of Tunisia, who had been denied a license to sell fruits and vegetables from his cart because he didn’t pay a bribe. A policewoman confiscated his vegetable cart and his wares. He was beaten when he protested, and on December 17 the humiliated young man set himself on fire. He died a few weeks later. Contagious demonstrations in Tunisia quickly followed the fateful denial of Mr. Bouazizi’s liberty.

The liberty whose denial inspired the overthrow of regimes in Tunisia, Egypt and, with any luck, Libya was economic liberty, or the right to earn a living. Although that liberty was obviously important to Mr. Bouazizi, the left regards economic liberty, to the extent it regards it as a liberty at all, as a lower order of liberty.

So do the federal courts. Economic regulations get minimal scrutiny under the Equal Protection and Due Process Clauses of the Constitution. The Takings Clause and the Contract Clause, which were intended to protect property rights and contract rights, have been enfeebled by the Supreme Court.

The division between economic liberties and other liberties is not one the Founders of this republic would have understood. Our revolution too was provoked by economic depredations. The interrelation of liberties is hard to miss. Free speech is much more difficult to exercise effectively without property that individuals rather than governments control.

State and local governments do most of the suppressing of the right to earn a living and the confiscating of vegetable carts in the United States. Conservatives who believe in federalism should be careful not to romanticize the states. From the perspective of an entrepreneur, another layer of regulation is no more felicitous merely because it emanated from a state capital.

States require licenses for all manner of innocuous occupations. Although consumer protection is the usual excuse, little is accomplished by occupational licensing beyond preventing people from getting a start or a new start in life and restricting the supply and increasing the cost of a given type of professional.

The District of Columbia, which unfortunately for its residents possesses home rule powers, recently decided to require wildlife control operators (people who trap varmints infesting houses) to be licensed. As is often the case with occupational licenses, wildlife control operators will have to take a class, pass an exam, and pay a fee. But in addition, the legislation eccentrically requires licensed wildlife control operators to capture and remove animals in ways that aren’t lethal, painful, or even “stressful” for the animal.

While states are the primary malefactors when it comes to occupational licensing, the Obama administration, of course, would not want to miss out completely on a means of controlling economic activity. And so the Internal Revenue Service has recently adopted regulations requiring tax return preparers who aren’t lawyers or CPAs to obtain a tax preparer identification number and to pay a user fee. The IRS intends to require competency testing and continuing education of tax return preparers.

On a larger scale of licensing, the Obama administration has capriciously denied permits to businesses that want to produce energy. Last month the Environmental Protection Agency vetoed a water permit that the Army Corps of Engineers had granted to a West Virginia coal mine in 2007 after nearly a decade of study.

The administration has imposed a series of unlawful moratoria on drilling in the Gulf of Mexico. Companies servicing offshore oil and gas drilling argued before U.S. District Judge Martin Feldman, a fiery intellectual, that the first moratorium violated the Administrative Procedure Act because it was arbitrary and capricious. Writing that he was “unable to divine or fathom a relationship between the [government’s] findings and the immense scope of the moratorium,” Judge Feldman issued a preliminary injunction against the moratorium.

The Interior Department quickly issued another moratorium, which it withdrew in October. Since then, the administration has imposed a de facto moratorium by not granting any permits for deepwater drilling in the Gulf. Finding those evasions to be in contempt of his preliminary injunction, Judge Feldman ordered the government to pay the companies’ attorneys’ fees. And last week he ordered the Bureau of Ocean Energy Management to act on five pending permit applications within thirty days, saying that the “permitting backlog is increasingly inexcusable.” So far, neither the court’s order nor soaring oil prices have awakened the Bureau of Ocean Energy Management.

Perhaps the ardor for freedom will circle back from the Middle East to the United States without any unemployed miners or offshoremen having to set themselves afire.