Tiwari v. Friedlander: Which Rational Basis Test is it Anyway?

In Tiwari v. Friedlander, the Petitioners ask the Supreme Court to grant certiorari to address whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation. The petition argues that the right to engage in a common occupation is deeply rooted in the nation’s history and tradition, but its protection has been inconsistent, sometimes leading to conflicting results across the lower courts. The petition also contends this inconsistency is caused by the standard under which courts review economic-liberty challenges— the rational basis test.
The Petitioners, Dipendra Tiwari and Kishor Sapkota, challenge Kentucky’s Certificate-of-Need (CON) Law as an unconstitutional infringement on their right to earn an honest living. The CON law prevents them from opening a healthcare agency they designed to provide home services to the large community of Nepali-speaking refugees and immigrants in Louisville. By contrast, Kentucky contends that the CON law is necessary for lowering competitive pressure and increasing profits for incumbents who can pass their gains to the public.
The petition raises questions about the proper articulation of the rational basis test and whether the right to engage in a common occupation is deeply rooted in history and tradition under the Court’s recent landmark decision Dobbs v. Jackson Women’s Health Organization.
Which Rational Basis Test is it anyway? Is the Right to Engage in a Common Occupation Deeply Rooted in History and Tradition and does the Fourteenth Amendment Guarantee Meaningful Protection for that Right?
To discuss the petition and these questions, please join the lead attorney for the Petitioners, Andrew H. Ward, attorney at the Institute for Justice, and Professor David Upham, Director of Legal Studies and Associate Professor at the University of Dallas.
Featuring:
--Andrew Ward, Attorney, Institute for Justice
--Prof. David Upham, Director of Legal Studies & Associate Professor, University of Dallas
--Moderator: Adam Griffin, Law Clerk, US District Courts