Upholding A Protectionist Law In Utah Would Break The U.S. Constitution

Jeremy Barnes lives in Franklin, Idaho. The state of Utah is just a few miles south. No stream or mountain ridge distinguishes the border between the two states. It’s just an imaginary straight line marked by a “Welcome to Utah” sign along U.S. Route 91. But that border is an insurmountable wall that stands between Jeremy and a job as a private investigator.

Jeremy doesn’t need a license to be a PI in Idaho and in practically every way he is also qualified to be a PI in Utah. Jeremy served 12 years as a police officer, starting as a patrol deputy and moving up to detective. He is the proper age, has no criminal record, has the required number of hours of investigative experience, and is able to get the required liability insurance. But his corner of Idaho is rural and there isn’t enough potential business for Jeremy to work full-time without also being able to take clients in Utah.

His law enforcement experience would serve him well in marketing himself to clients, but for the state of Utah those qualifications are not enough. He is also required to live in Utah before the state will even consider giving him a PI license.

Utah only mandated a license for PIs in 1995 and, for more than 15 years, out-of-state residents like Jeremy could get a license if they met the qualifications. That changed in 2011 after the Private Investigators Association of Utah convinced the State Legislature to create a new requirement that applicants also be residents of Utah.

A supportive state legislator claimed that the requirement would “prohibit less qualified out-of-state competitors from taking Utah jobs.” But Jeremy, and others like him, aren’t “less qualified” just because of their address. The new law didn’t create additional requirements to prove knowledge of Utah’s laws or customs, it just added a barrier of state residency. That’s rank protectionism, and it’s unconstitutional.

In fact, laws like Utah’s are one of the biggest reasons we have the U.S. Constitution in the first place. In the midst of the Revolutionary War, the Continental Congress created the Articles of Confederation in order to bind the colonies together as they waged war for independence. The Articles restricted the role of the national government, leaving trade policy to the separate states.

It wasn’t long before states were finding ways to punish each other with tariffs and taxes. Founder Fisher Ames, who would become a leading Federalist in Congress, noted that: “The king of New York levied imposts upon New Jersey and Connecticut, and the nobles of Virginia bore with impatience their tributary dependence upon Baltimore and Philadelphia. Our discontents were fermenting into civil war.”

The drafters of the U.S. Constitution saw that trade wars between the states would harm national unity and the fragile American economy. There could be no end to the various barriers state legislatures might be willing to pass to “protect” their constituents. Under the new constitution, federalism would remain an important principle of American governance but the power to regulate interstate commerce would be firmly in the hands of the federal government.

The constitution protects the right of Americans to engage in interstate commerce in a number of ways. Jeremy, and all Americans, are guaranteed equal protection of the laws, states are required to give residents and non-residents the same privileges, and only Congress has the power to regulate interstate commerce.

Forty-five states require private investigators to be licensed. Utah is the only state in the union that restricts its license to only state residents. There is no legitimate health or safety reason for this requirement. In fact, Utah licenses for nurses and doctors don’t require state residency.

Jeremy is teaming up with the Institute for Justice to sue Utah overs its protectionist PI license. If Utah’s state residency requirement is allowed to stand, it would break critical constitutional rights that knit the United States together economically. Living just outside a state’s border does not make someone less qualified to do a job.

Utah’s state symbol is the beehive, which is supposed to represent the state’s respect for the value of hard work. Jeremy worked hard to build the skills he would need to run a successful PI business, but right now he is working as a rural postal carrier to make ends meet. Hopefully federal courts will protect Jeremy’s right to freely practice his trade in Utah so that he can better provide for himself and his family.

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