III. Due Process & Current Constitutional Challenges
A. The Right to Work: A “very important ‘liberty’ interest”
In McDonald v. Chicago, Justice Stevens, author of BMW v. Gore and Padilla v Kentucky, discussed below, reminded the Court that substantive due process is a matter of individual liberty. In a stern dissent, Justice Stevens discussed the liberty clause as a constitutional “‘promise’ that a measure of dignity and self-rule will be afforded [to] all persons.” Recognizing that “process” implies strict procedural analysis, Justice Stevens asserted that substance and process are intertwined, thus permitting the constitutional interpretation of due process as giving substance to the word “liberty” as it relates to “due process.” Furthermore, substantive due process analysis, for Justice Stevens, is a forward-looking methodology. Citing Lawrence v. Texas and Michael H. v. Gerald D., Justice Stevens understood the analysis to consider the sociopolitical landscape of a modern society. Although occupational freedom or a “right to work” has never been recognized by the Court as a fundamental right, it has deep roots in the American conception of “ordered liberty,” and in today's society individuals are adjudged according to their occupation. Most importantly, Justice Stevens found it to be the Court's responsibility to safeguard individual liberty as opposed to leaving it to “majoritarian political processes.” He considered it “judicial abdication” to grant substantial legislative deference on the issue of the liberty guarantee in the Due Process Clause. It is important to understand this conception as applicable not only in some contexts but in all questions that the Supreme Court faces.
In the 1798 Supreme Court case Calder v. Bull, Justice Samuel Chase pronounced a set of laws not to be categorically entrusted to legislative authority:
A law that . . . impairs[] the lawful private contracts of citizens; a law that makes a man a Judge in his own cause; or a law that takes property from []A and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH [sic] powers; and, therefore, it cannot be presumed that they have done it.
The Court has put forth a number of constitutionally protected time-honored rights including “the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge . . . and generally to enjoy those privileges long recognized . . . as essential to the orderly pursuit of happiness by free men.” It has also asserted that “ineligibility for employment in a major sector of the economy [] is of sufficient significance to be characterized as a deprivation of an interest in liberty.” When the opportunity to work is at risk of being foreclosed, the government is prevented from favoring some citizens over others. The state is prohibited from excluding persons from any occupation in a manner that contravenes due process of law. With this, due process is used as a vehicle guaranteeing fairness and protection against unreasonable and capricious government action. When evaluating the restriction of employment opportunities, the Court has emphasized that a standard less than strict scrutiny applies. Nevertheless, the government deprivation must comport with due process.
These principles are deeply entrenched in American constitutionalism and reached their pinnacle during the infamous Lochner era in which the Supreme Court invalidated a number of statutes on the premise that such statutes interfered with an individual's freedom of contract, asserting in one case that “[t]he right to earn a livelihood and to continue in employment unmolested by efforts to enforce void enactments should similarly be entitled to protection in the absence of adequate remedy.” The method employed, substantive due process analysis, was soon thereafter repudiated, the death toll ringing with West Coast Hotel Co. v. Parrish in 1938. With the New Deal and the “Switch in Time That Saved Nine,” the Court back peddled on the existence of a “right” to earn a livelihood in NLRB v. Jones & Laughlin Steel Corp. Instead of looking into the substance of legislative actions regarding occupational freedom and assessing it for fairness, the Court gave almost absolute deference to legislative action. However, substantive due process analysis may still thrive in one specific instance: to protect a discrete and insular minority. Whether ex-offenders as a group would qualify as such--a discrete and insular minority--is a question only for the United States Supreme Court.
B. Collateral Consequences in the Supreme Court
Historically, the treatment of collateral consequences has been inconsistent at best. Judges and lawyers alike are unsure of whether they are criminal or civil, collateral or direct, and whether or not they are significant enough to trigger particular constitutional safeguards. The Supreme Court itself passes down mystifying opinions in its review of collateral consequences. It appears as though the Court itself is puzzled regarding whether these penalties are direct or collateral and whether they are entitled to constitutional review. In fact, the Court has rarely reviewed cases challenging collateral consequences of conviction. However, there have been a few instances where the Court granted certiorari. These cases have led to opinions in the context of voting, sex offender registration, and deportation.
1. Collateral Consequences Generally
In 1974, the Court reviewed a constitutional challenge to felon disenfranchisement in Richardson v. Ramirez. In that case, the Court held that disenfranchisement based on a felony conviction does not violate the Equal Protection Clause of the Fourteenth Amendment. Justice Rehnquist, writing for the majority, reasoned that the text of the clause explicitly allowed limitations on voting, asserting that the constitutional text itself explicitly calls for disenfranchisement for participation “in rebellion, or other crimes.” This, however, has not foreclosed challenges on other constitutional grounds.
In the 2003 case of Connecticut Department of Safety v. Doe, the Supreme Court considered the collateral consequence of public disclosure of state sex offender registrations. The Court reversed the Second Circuit's ruling that the respondent was deprived of his liberty interest in his reputation without procedural due process. Drawing on precedent, the Court asserted that individuals do not possess a liberty interest in reputation alone. More importantly, the Court signaled that this case had more to do with substantive due process than procedural due process, but because the respondent disavowed the substantive argument, the Court would not consider the issue. This signifies the Court's willingness to review a substantive due process challenge to collateral consequences.
In the most recent case on collateral consequences, Padilla v. Kentucky, the Court reversed and remanded a judgment of the Kentucky Supreme Court rejecting the defendant's ineffective assistance of counsel claim when the defendant's lawyer failed to advise him of the immigration consequences of pleading guilty to a drug trafficking offense. In rejecting the claim, the Kentucky Supreme Court viewed potential deportation as a collateral consequence of conviction and therefore outside the scope of the protections of the Sixth Amendment. Reversing, Justice Stevens writing for the majority held that Sixth Amendment Strickland requirements necessitate counsel to “inform her client of whether his plea carries a risk of deportation”--a consequence of a felony conviction. While the opinion refused to categorize deportation as a direct or collateral consequence, it did recognize the confusion over the categorization of direct versus collateral distinction.
2. Constitutional Challenges to Occupational Licenses
The Supreme Court has examined challenges to occupational licensing restrictions based on felony conviction in only a few cases. The first case that encountered this issue was Hawker v. New York in 1898. There, the Court upheld a statute that criminalized the practice of medicine by individuals with a felony conviction. The defendant-doctor was convicted of performing an abortion in contravention of New York criminal law and was subsequently barred from practicing medicine. Dr. Hawker alleged a violation of the Ex Post Facto Clause of the Constitution. The Court reasoned that this prohibition was not an additional punishment but was instead a regulation premised on evidence of the unfitness of the offender--the evidence being the fact of conviction.
A little over fifty years later, the Court confronted the issue of occupational licensing restrictions again in Barsky v. Board of Regents. The Court found a New York statute suspending a physician's license upon felony conviction constitutionally permissible. In that case, the physician-defendant was convicted for failing to comply with a congressional subpoena, and his license was subsequently revoked per the statute. He argued that the statute under which he was “convicted” was not a “crime,” thereby failing to provide a basis for the suspension of his license. Dr. Barsky argued that the statute permitting the suspension was unconstitutionally vague and therefore a violation of due process. The Court distinguished the New York statute giving the Board of Regents broad discretion in determining whether to revoke a license from those statutes requiring automatic termination of a license upon felony conviction. For the Court, the discretionary nature of the statute coupled with New York's interest in public safety was determinative. The statute was therefore constitutionally reasonable.
In De Veau v. Braisted, the Court upheld a statute that disqualified individuals with felony convictions from holding union offices in specific waterfront occupations. The appellant alleged due process violations and unconstitutional ex post facto and bill of attainder claims. The Court determined that the exclusion of convicted felons from holding union offices in this context was constitutionally permissible because waterfront commercial enterprises were particularly susceptible to corruption. The New York state interest in preventing such corruption was justifiable, and the means of preventing such corruption, barring ex-offenders from holding office, was constitutionally permissible.
Outside of the Lochner era, the Supreme Court has not dealt with occupational licensing restrictions with any real consistency. It is clear that the Court will give substantial deference to legislatures and, many times, will find against an ex-offender's interest in occupational freedoms. However, the Court has developed no real framework to evaluate such challenges. Furthermore, reasoning employed in prior case law is no longer applicable in an era when one in four Americans have some type of criminal history. The Supreme Court has not heard an occupational licensing challenge to date. As a result lower courts have been forced to develop jurisprudence in this area by parsing through older Supreme Court precedent and newer circuit court of appeals case law.
3. Current Constitutional Challenges
Claims challenging occupational licensing restrictions have been customarily brought under equal protection and due process. Due process has permitted challenges under procedural due process, substantive due process, and the irrebuttable presumption doctrine. The question becomes whether the classification is arbitrary and whether there is a rational relationship to a legitimate state interest while simultaneously giving substantial deference to legislative action. Because ex-offenders are not considered a suspect class, equal protection analysis regarding occupational licensing disqualifications is essentially the same. While it has been argued that ex-offenders ought to be treated as a suspect class, two main obstacles exist. First, ex-offenders are themselves responsible for their classification by their individual engagement in criminal conduct. Thus, the “felon” label is preventable. It is also distinguishable from the immutable characteristics of race, sex, and alienage, which are traditionally entitled to a higher degree of constitutional scrutiny. In addition, the text of the Fourteenth Amendment permits the disenfranchisement of felons upon a finding of participation in “crimes.” These obstacles make it difficult for reviewing courts to find constitutionally impermissible discrimination on the basis of felony conviction. Moreover, states have broad authority under their police power to protect the health, safety, and morals of their citizens. Most state statutes disqualifying ex-offenders from occupational licenses typically do so with “public safety” or “public trust” as the basis for the denial. In such instances, the state has a weightier interest at stake than the interest of an unprotected class of persons.
Procedural due process claims have also been levied against state occupational licensing restrictions. The Supreme Court has held it is constitutionally impermissible for a state to arbitrarily exclude persons from an occupation. However, it remains unclear whether an individual who has been denied a professional license is entitled to a hearing if the denial is based on facts that may be adjudicated at a hearing. Some decisions concerning a “property” right in a professional license indicate that no hearing is required unless the individual previously received a license that the state seeks to revoke. Thus, an individual denied an initial license would have to sue to have the denial reviewed. Furthermore, while notice is an essential component of due process, the traditional meaning of “fair notice,” where a person of ordinary intelligence comprehends that her conduct is prohibited and subject to consequences, allows significant leeway in the way state agencies comport with due process. Questions remain regarding whether a statute that denies ex-felons licenses satisfies the requirement of fair notice.
The irrebuttable presumption doctrine, a hybrid of substantive and procedural due process, appeared to offer the most promising challenge to occupational licensing restrictions. In the early 1970s, the Supreme Court reviewed five cases regarding statutory classifications. The Court concluded that the state was constitutionally forbidden from establishing an irrebutable presumption where it classified individuals for purposes of allocating a burden or benefit without making a determination of the individual's claim. Therefore, a due process violation occurs when a legislatively important fact is presumed from a separately proven fact under a process or procedure in which the individual involved was denied an opportunity to rebut the presumption. For example, in Cleveland Board of Education v. LaFleur, the Court invalidated employment restrictions on pregnant teachers where no procedure was provided to make individualized determinations on their ability to work during their pregnancies. While the irrebuttable presumption doctrine does not strictly conform to a procedural due process analysis, it does highlight important due process concerns. When the state distributes burdens or benefits, a fair procedure is necessary. Such challenges met with some success but were otherwise short-lived. The doctrine was criticized for confusing traditional constitutional analysis under due process and equal protection. With Connecticut Department of Public Safety v. Doe, the due process irrebuttable presumption doctrine was reasoned away and put to sleep.
Understanding that the customary constitutional protections used to evaluate statutes for fairness are virtually inoperable in the context of individual occupational rights, this Article looks to a different framework that may serve as the mode of analysis. BMW v. Gore and its progeny provide doctrinal underpinnings in the creation of a workable framework.
