|End of the Roman Empire|
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Essentially, this is how the proposed bill would work. Let's say you wanted to pull a few teeth -- just for the neighbors and a few friends; nothing big -- and some bureaucrat comes in and says, "You can't do that; it's practicing dentistry."
Whereupon, you say, "Ha! That seems burdensome to me. I'm really good with a pliers; I practiced on the dog; prove to me this 'practice of dentistry' stuff is really necessary."
And believe it or not, under the statute the state would have to prove it each and every time that some yahoo decided to become a shade tree dentist. It would be true of any profession or occupation licensed by the state -- or any political subdivision thereof.
The practice of medicine (I'm really good with a penknife and my old woodburning set; I ought to be able to remove warts and small skin cancers); the practice of law (I go an "A" in debate); accounting, building contractors, electricians, plumbers, cosmetologists, barbers, and any other licensed activity would be subject to the same rule of "least restrictiveness."
Anybody wishing to challenge a licensing requirement -- even if not the object of an enforcement action -- would be able to do so, and each and every time, it would be the licensor's burden to prove the health and safety necessity of the requirement. No matter how many times the licensor won, a litigant could still make the licensor prove the necessity of the rule the next case.
This bill turns the law on its head. The simple cost alone of defending every licensing regulation in each case staggers the imagination. And of course, that's the idea. Regulators will run out of money and will just give up.
And it is not as though you can't presently challenge a license or any other regulation, for that matter. But you bear the burden of proving why the rule is unconstitutional or is contrary to statute, or that the statute or ordinance itself was beyond the power of the body to enact or adopt. And if you win, it binds the governing body against everybody else.
Under the bill, merely because the governing body won once, that doesn't mean each and every person coming before it can't make the same argument (because the new person was not a litigant to the earlier decision and is not bound by it), requiring that the same experts come in to court and explain the same thing, over and over.
There's one other serious -- nay, fatal -- defect in the bill I haven't even mentioned yet: it violates the separation of powers under the Minnesota Constitution. If legislation is made within the scope of authority of the Legislature, you can't have a law that subsequently derogates that authority to a court. It is a denial of the democratic process.
It is astonishing that a group of legislators would hate the body they sit in so much that they would cheerfully give their legislative authority away, to a bunch of judges, and turning them into activist judges, to boot. Pitiful.
And you'll never guess who thinks this is a great idea.