Justices asked to strengthen the right to earn a living

Petitions of the week

The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

Under longstanding constitutional law, most laws survive constitutional challenges so long as the government has a “rational basis” for enacting them. This week, we highlight cert petitions that ask the court to consider, among other things, whether rational basis is the correct standard of review for a law that affects the right to “engage in a common occupation.”

Louisville, Kentucky, is home to a large community of Nepali immigrants. Because most in-home health care aides in the area speak English, Dipendra Tiwari and Kishor Sapkota wanted to establish a home care agency to provide services by and for their Nepali-speaking community. Their application for a certificate of need from the state, however, was denied. Under Kentucky law, home health agencies may not open unless the state determines there is a need for more services, and the state’s formula found the need in Louisville was already satisfied.

Tiwari and Sapkota challenged the certificate-of-need law in federal court as violating the 14th Amendment, which they say protects the right to earn a living by engaging in common occupations. The first judge to hear Tiwari’s and Sapkota’s case endorsed their view. But when that judge was appointed to a federal appeals court, the case was assigned to a new judge, who ultimately upheld the state law under the rational-basis test. The judge agreed with Kentucky’s argument that the law rationally furthers its legitimate interest in protecting existing home health services from competition. The U.S. Court of Appeals for the 6th Circuit affirmed.

In Tiwari v. Friedlander, the Louisville residents ask the justices to reevaluate the application of the rational-basis test to laws that infringe on the ability to earn a living. They argue that the right to engage in common occupations is well grounded in the nation’s history. The rational-basis test not only provides insufficient protection for that right, they contend, but it is also hard to administer. Tiwari and Sakpota cite conflicting decisions on this issue by courts around the country for evidence of that point, but they insist that the justices need look no further than their own case: One trial judge suggested Kentucky’s law would fail the rational-basis test, a second ruled that it survived by a fair margin, and the 6th Circuit held that it passed “perhaps with a low grade but with a pass all the same.”

A list of this week’s featured petitions is below:

Ritter v. Migliori
22-30
Issue: Whether the Supreme Court should vacate, under United States v. Munsingwear, Inc., a decision by the U.S. Court of Appeals for the 3rd Circuit holding that a Pennsylvania requirement for voters to sign and date a declaration when they vote by mail is preempted by the materiality provision of the Civil Rights Act of 1964.

Teva Pharmaceuticals USA, Inc., v. GlaxoSmithKline, LLC
22-37
Issue: Whether a generic drug manufacturer’s FDA-approved label that carves out all of the language the brand manufacturer has identified as covering its patented uses can be held liable on a theory that its label still intentionally encourages infringement of those carved-out uses.

Tiwari v. Friedlander
22-42
Issue: Whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation.

Lora v. United States
22-49
Issue: Whether 18 U.S.C. § 924(c)(1)(D)(ii), which provides that “no term of imprisonment imposed … under this subsection shall run concurrently with any other term of imprisonment,” is triggered when a defendant is convicted and sentenced under 18 U.S.C. § 924(j).