Should government be allowed to force entrepreneurs to do useless things just to get into business?
When Verlin Stoll sued Minnesota in January for requiring every funeral home in the state to have an embalming room—a room that never actually has to be used and does not even need to be functional—industry defenders expressed little doubt that his constitutional challenge would fail.
But a federal court in Pennsylvania recently struck down an identical requirement as unconstitutional for the exact reason that Mr. Stoll advances in his legal challenge. In a nutshell, the judge invalidated Pennsylvania’s embalming-room law because it failed to advance any plausible government interest in public health or safety.
That will come as no surprise to those following Mr. Stoll’s lawsuit. Common practice in the funeral industry is to centralize all embalming to one location. The largest funeral home in the Twin Cities has 17 embalming rooms and uses only one. So the majority of embalming rooms in Minnesota are used for storage, as offices or simply lie empty.
Requiring funeral entrepreneurs like Mr. Stoll to waste time and money on a useless embalming room isn’t just foolish policy, it is unconstitutional. As the federal court in Pennsylvania recognized, the U.S. Constitution tolerates restrictions on our economic liberty only to the extent that government regulation targets an actual public problem. Because the Minnesota Constitution, which is at issue in Mr. Stoll’s case, is even more protective of liberty than the Constitution, it is difficult to imagine the Minnesota law surviving.
Irrational laws are rarely accidents. Too often, they are the result of industry insiders agitating for regulations that keep competitors out and prices high. It is no coincidence that Mr. Stoll, who wants to avoid building a useless embalming room in order to undercut his competitors, is opposed by the funeral-industry establishment.
The lesson of the constitutional victory in Pennsylvania is that economic liberty matters, but only if judges enforce the right to earn an honest living free from arbitrary regulation. Unfortunately, judges are often scared off by accusations of “judicial activism.” Rather than truly engage with the facts and law, they reflexively defer to legislatures, which often results in laws being upheld that do nothing but advance the interests of private parties with the time, money, and expertise to control the regulatory process.
Actually looking at the facts and striking down unconstitutional laws is not judicial activism but judicial engagement. And without judicial engagement, there can be no protection of our constitutional rights.
Judges can protect rights. Judges can look at the facts surrounding a law and see that a major organization like the funeral directors association pushed the legislature to do something irrational. Without judges to correct that irrationality, these laws remain on the books, violating constitutional rights.
Fortunately for Minnesotans, Minnesota judges have a long and worthy tradition of judicial engagement. The Minnesota Constitution provides heightened protections of constitutional rights and requires judges to carefully analyze each justification the government offers for a law to assess whether those justifications actually make sense in practice.
Because the embalming room requirement makes absolutely no sense in practice, Minnesotans should not expect to see it around for much longer. With a Pennsylvania court decision that has soundly rejected each of the government’s justifications for the law and with a Minnesota Constitution that vigorously protects the right to earn a living, Mr. Stoll’s challenge has the potential to vindicate the rights of all entrepreneurs to run their businesses without useless government requirements getting in the way.
Katelynn McBride is an attorney with the Institute for Justice Minnesota, which is challenging Minnesota’s embalming room requirement.
Source: AFF Doublethink Online | Andrew Stiles
Source: AFF Doublethink Online | Kathlyn Ehl