Employment and Regulation Are Not Mutually Exclusive

Bain, a white man with white hair, wears a white shirt and black suit.By W. Bain Jones Jr.

Is there a right to employment? Does Administrative Law prohibit an individual’s right to employment or only limit it in some circumstances?

The United States Constitution states in the preamble:

We, the People of the United States, in order to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and or Prosperity, do ordain and establish the Constitution of the United States.

The Declaration of Independence states:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . Prudence, indeed will dictate that Governments long established should not be changed for light and transient causes.

The North Carolina Declaration of Rights begins as follows:

That the great, general and essential principles of liberty and free government may be recognized and established, and that the relations of this State to the rest of the American people be defined and affirmed, we do declare that:

Thirty-seven rights are then listed. None state a specific right to employment, although Article 1, Section 1 includes a right to “enjoyment of the fruits of their own labor” among the inalienable rights of North Carolinians.

In each of these foundational documents of our nation and state, there is no specific right to employment. Each of the referenced documents sets forth the standard that the common good is paramount in regard to the Federal and State Governments. Pursuit of happiness, liberty and the blessings of liberty and prosperity are both individual and common rights governed by law.

Much discussion is presently occurring suggesting that Administrative Law, and regulation by agencies, board and commissions are detrimental to the right to employment and to the economy. Assuming hypothetically there was a right to employment, it is clear from the wording of the United States Constitution and the North Carolina Constitution that these governments will be regulating trade, commerce, professions and daily activities. Thus, even if the right to “fruits of their own labor” is interpreted as a right to employment, it is not an absolute right.

It is also clear that the ability to work and regulation are not mutually exclusive.

Recently, a speaker before a General Assembly Committee suggested that modern regulation is mostly unnecessary and that there are options other than occupational licensing. The speaker suggested that substitutes for occupational licensing would be: online reviews; requiring notices to customers of a person’s professional or occupational background and education, certifications voluntarily obtained, and the like; or, suing when harmed. The speaker’s slides included this quotation: “The most generally held view on the economics of occupational licensing is that it restricts the supply of labor to the occupation and thereby drives up the price of labor as well as the services rendered — Labor economist Morris M. Kleiner.”

Do we want to simply allow professional and trade work to be controlled by reviews? Could the reviews not be easily biased and distorted based on the pool of writers? Have we not all read about online reviews written by those being reviewed, and about trolls posting bad reviews to essentially extort money from those being reviewed?

Do we want to leave protection of wildlife, the environment, education, water usage and many other things to the whims of the market without any standards or guidelines? Some may remember the legislator who asked in a committee meeting in the 90s, “Well, why does the Department of Agriculture need meat inspectors? After all if someone gets bad meat, they just won’t go to that store anymore?” And the audience member who in a stage whisper said, “no, they’ll be in the cemetery.”

Do we want to abandon mean level requirements for occupations and professions?

Some would assert that the remedy for the “problem” is litigation. Our courts are already swamped with litigation. Adding this layer of litigation seems unresponsive to the common good and would most likely break the court system, even assuming that the consumer who is harmed could afford the litigation.

I assert that nothing about Administrative Law or regulation by agencies, commissions and boards is meant to prohibit an individual from working. Instead, it is about assuring a world for our citizens to live in, in which government protects public health, safety and welfare.

It is incumbent upon each of us to speak out in a calm, informed and professional way about what Administrative Law and Regulation really is in North Carolina. You will be shocked at the ignorance of legislators and the general public. This area of law is to help the general public and for the common good.

Please stay abreast of the actions of the Legislature. Please talk to many people about the reality of Administrative Law and Regulation and the significant alternative facts and lies being spread. Together, we can make a difference so the health, safety and prosperity of our citizens are protected and enjoyed.