A clamp down on immunities in disciplinary cases in occupational licensing - are we seeing a new policy emerging, to save the U.S. economy from further stagnation?

As many economists so far have been warning, in scholarly articles and books, occupational licensing in the United States, which now restricts entry and participation in over 30% of jobs (and, probably, close to 80% or more of well-paying jobs) in the U.S., is not helping consumers, is not evidence-based, is the result of lobbying efforts of interest groups that want to restrict competition, and is stifling the U.S. economy.

While federal courts are not allowed to engage in policy-making, that's a legislative function exclusively given by the U.S. Constitution, Article I, to the U.S. Congress - they do engage in that policy-making, and heavily so.

That is done by trends in court decisions.

The two decisions in occupational licensing on issues of immunities of the disciplinary board from civil rights lawsuits in 2015 may herald a turn of higher-level federal courts against their prior universal position to grant immunities to disciplinary authorities in occupational licensing no matter what.

In February of 2015, in the case North Carolina Board of Dental Examiners v Federal Trade Commission, the U.S. Supreme Court denied immunity to disciplinary boards in professions regulated by its own professionals ("market players").

In June of 2015, the U.S. Court of Appeals for the 6th Circuit denied even qualified immunity as a matter of law to a disciplinary board sued after it suspended occupational licensees' licenses for refusal to give self-incriminating testimony in disciplinary proceedings, and remanded the case to a trial in the district court.

In July of 2015, the White House has issued a "policy" report on occupational licensing starting with this "executive summary":

In October of 2015, the Federal Trade Commission has issued a harsh rule to its staff for prosecution of antitrust violations by the occupational licensing disciplinary boards, based on North Carolina Dental, outlawing "active market supervision" by market players in the disciplinary proceedings (like it happens in "market supervision" of the legal profession, for example).

Usually, in disciplinary proceedings, federal courts give to prosecutors ABSOLUTE prosecutorial/quasi-judicial immunity left and right, and claim that such immunity is jurisdictional, and even sanction victims of such prosecutors for daring to sue them in civil rights cases.

In this case, the 6th Circuit denied to prosecutors even QUALIFIED immunity - as a matter of law, whether such immunity can be granted as a matter of a mixed issue of fact and law, is remanded back to the district court.

The beauty of the issue is that remanded for trial the issue whether qualified immunity applies, exposes prosecutors to a trial on damages - as the 6th Circuit expressly said in its decision - and that is exactly what prosecutors are usually spared, on the basis of ABSOLUTE quasi-judicial/prosecutorial immunity.

It appears that we are seeing a trend, starting from the highest level (which did not reach the mentalities of district courts and state governments yet) to clamp on occupational regulation:

1) by denial of antitrust "state interest" immunity (the U.S. Supreme Court in North Carolina Board of Dental Examiners v FTC, February 2015), and

2) by denial of absolute - or even qualified - prosecutorial and quasi-judicial immunity (the 6th Circuit in Moody v Michigan Gaming Board, June, 2015).

The trend appears to be caused not by the need to apply the rule of law and uphold people's constitutional right to earn a living, but because of money matters - because the U.S. economy will not be able to get out of its apparent current stagnation unless it unplugs its occupational licensing cancer.

I will continue to follow this trend.

Stay tuned.