Amicus Brief: Tiwari v. Friedlander

Introduction

Dipendra Tiwari and Kishor Sapkota want to open a home health care business to care for patients too ill to leave their homes—and to provide these services in patients’ native languages, which would naturally result in better outcomes. Yet they are forbidden to do so in Kentucky, not because they are incompetent or unqualified, but solely because the state has decided to protect the economic interests of existing businesses that don’t want to compete fairly in the marketplace. Kentucky’s Certificate of Need (CON) laws allow existing firms to veto their own competition—a sort of heckler’s veto that would never be tolerated in the context of free speech, free religion, or the freedom of travel. The state mustered a thin intellectual rationalization for this injustice, just as it might rationalize violating those other rights. Were it to attempt this maneuver with latter, a court would scrutinize the state’s arguments rather than blindly deferring. But because this case concerns rights characterized as “economic,” many courts read existing precedent to deprive Dipendra and Kishor of that right to a judicial weighing of the evidence—thus leaving their freedom to make economic choices at the mercy of the legislative majority. 

MI has joined the Goldwater Institute on a brief before the U.S. Court of Appeals for the Sixth Circuit. We argue that the court should take this opportunity to make clear that the right to earn an honest living is a fundamental right that is protected by the Fourteenth Amendment because it is essential to any system of ordered liberty and deeply rooted in our history and traditions. Any way you evaluate this case, the economic liberty at its core deserves meaningful judicial protection.

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Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.