When I see a cert petition assert a constitutional "right to engage in common occupations," that catches my attention. The case is Tiwari v. Friedlander. Cert petition here.

I’m reminded that "The Constitution does not prohibit legislatures from enacting stupid laws."

The facts are simple. The petitioners are two folks who own Grace Home Care, formed to provide same-language healthcare to Nepali-speaking folks in Louisville, Kentucky. But Grace could not open. Under the Certificate of Need law, Kentucky had determined that there was no “need” for any new home health services in Louisville.

The suit claimed that the Certificate of Need Law was a violation of the "right to earn a living" under the Due Process, Equal Protection, and Privileges or Immunities clauses of the Fourteenth Amendment. The district court and the 6th Circuit denied Grace's claim.

It's a long-standing rule that economic legislation passes constitutional muster if the government has a "rational basis" for the law. The petitioners are asking the Supreme Court to clarify how the rational basis test should actually be applied. They claim (with considerable justification I think) that the Supreme Court has described the rational-basis test inconsistently and that this has led to confusion in the lower courts, absurd results, and inconsistent outcomes.

In this very case, a trial court judge originally sided with Grace. However, that judge got elevated to the Circuit court and a new judge upheld the law under the rational-basis test. Then at the 6th Circuit the court ruled that "Kentucky's certificate-of-need law passes, perhaps with a low grade but with a pass all the same."

I don't expect the Supreme Court to grant certiorari in this case. The petitioners view the right they assert as somehow special, and want the rational-basis test to have sharper teeth. I think the Supreme Court is tired of "ranking" rights as more or less important, and prefers to let the democratic process work its wonders in the economic arena.