A Stitch in Haste

Another libertarian underdog fight may get to the Supreme Court, if they're in the mood:

An Oklahoma regulation that requires the licensing of anyone who wants to sell caskets in the state should be buried six feet under, consumer groups are telling the Supreme Court this week.

At its conference Friday, the Court will consider whether to grant review in Powers v. Harris, No. 04-716, a case from the 10th U.S. Circuit Court of Appeals upholding Oklahoma's Funeral Services Licensing Act.

The challenge comes after Kim Powers and Dennis Bridges began selling caskets over the Internet in 2001 through their Oklahoma corporation, Memorial Concepts Online, at prices below the funeral home market price. They sell caskets out of state and have forgone sales in Oklahoma because of the licensing law, which requires two years of college coursework and graduation from an accredited mortuary science program, two exams, and a one-year apprenticeship in a funeral home, during which the apprentice embalms at least 25 bodies.
...
Although disagreeing with the regulation, [Chief Judge Deanell Reece] Tacha said it was not the court's role to strike the law. "While baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments," Tacha wrote. The court said Powers and Bridges had to turn to the legislature, not the courts, to change the law.

There's a circuit split over this issue, so it's possible that the Supreme Court will agree to hear the case, but my guess is that the prospects are slim. Unlike the recent case of Roper v. Simmons (the juvenile death penalty case), this Court seems to have found a new eagerness to defer to legislatures on all matters economic. For economic regulation, "rational basis review" continues to mean no review at all.

How exactly pumping a dead body full of embalming fluid makes someone more qualified to sell a casket defies all explanation. Making caskets more expensive by restricting supply, for the benefit of those who happen to have a license to sell them, requires no explanation at all -- it's the Politics of Pull.

When are you likely to be more susceptible to exploitation -- when you're grieving and sitting alone in a small room in a mortician's office or when you're strolling the aisles (or the web pages) of a variety of casket merchants? Just how defective can a casket be? How much "consumer protection" can possibly be required?

This law is an ideal test case. Which unfortunately still doesn't mean the prospects are good.

Meanwhile, here's the Institute for Justice website on the Oklahoma casket law and related licensure travesties.

FUN FACT: Until recently, morticians were unconditionally exempt from jury duty in New York State, under the rationalization that theirs was a "critical occupation." Talk about the Politics of Pull...

UPDATE: OpinionJournal has more.

Related Posts:
Licensing: A Thorny Bouquet
The Politics of Pull -- A Cyberspace Case Study