Now to a Panel Discussion on to state and licensing requirements or Service Industry jobs such as cosmetology. Labor secretary says lawmakers should work to get rid of unnecessary state licenses. This Panel Discussion is on our is it one hour. Unhappy to see some familiar faces in the audience and for those who dont know me my name is trying to koren wongervin. I also teach antitrust and intellectual property law. I will pause for a minute. We also have people joining us online. Again, to everyone in the room, welcome and thank you for coming. Its a privilege to be here today in my capacity as cochair along with josh writes of the antitrust and Consumer Protection working group of the fried the list society project. This project was launched in 2016 to foster a National Conversation around the issue of revelatory access end of the harms it causes. Of the project consists of 12 working groups, each composed of experts with specific fields of regulatory line policy ranging from environmental and energy to raise and sex. In june, this year each of the working groups started to release issue page verse, podcasts and short videos which among other things can be found on our website. I invite you all to visit the website. Todays panel is the first of these conversations for the antitrust and Consumer Protection working group and its devoted to occupational licensing and other restraints on competition. I will turn it over to mike hobart read her host for today, lisa kimmel. Thank you. Hello and thank you for joining us today. My name is lisa kimmel, senior counsel in and take trust a group. Like everyone else you will hear from on the panel i also before joining the law firm spent time at the federal trade commission where i was in antitrust and competition policy advisor to former chairwoman Edith Ramirez focusing on antitrust and competition matters in that Technology Sector into two killer on behalf of all of us we went to welcome everyone and thank you for giving us the opportunity to host this program. With that i will introduce our Prestigious Group of panelists and first of all we have the honorable Maureen Ohlhausen. Maureen was sworn in as as a commissioner on the federal trade Commission April 4, 2012, and was designated by the Current Administration to serve as acting chairman in january, 2017. Before joining these commissions, marine was a partner at Wilson Barker where she focused on ftc issues including competition law and technology policy. I want to say that the acting chairman has a long history of ftc service and before rejoining the commission and 2012 marine previously served as both that the Deputy Director and of the office of policy planning which i believe is in charge of economic liberty. Maureen was also a returning attorney advisor and began her career initially in the general counsels office. Lets me also add before joining the ftc for the first stance marine has maureen has spent five years at the us court of appeals for the dc circuit serving as a law clerk and staff attorney and she graduated with distinction from Antonin Scalia law school and was honored from the university of virginia. Thank you for joining us and welcome to the program. To my immediate right we have Professor James cooper. He is on associate professor of law at Antonin Scalia law school at george mason university. James brings a decade of public and private sector experience through his research and teaching work and he also spent time at the federal trade commission where he served as the deputy and acting director of the office of policy planning and as attorney advisor to federal trade commission or bill come off sick and he also spent time here with antitrust Group Earlier in his career, so we are happy to welcome at james back. Professor coopers research at the law school focuses on competition and Consumer Protection issues including privacy, data security, behavioral economic and antitrust treatment of vertical practices and price dissemination. James has a ba from the university of South Carolina and phd in economics from Emory University and also holds a law degree from Antonin Scalia law school at george mason university. Last, but not least we have Sarah Oxenham allen. Sir alan is eight Senior Assistant attorney general of the antitrust unit in that Virginia AttorneyGenerals Office and cochairs the National Association of attorneys generals state action working group, so the right person to be on this panel. She successfully argued the Summary Judgment motion and for the circuit appeal on the half of the virginia board of medicine and six of its individual Board Members against an antitrust claim by a chiropractors sanctions sanctioned by the board. Most recently ms. Allen represented the commonwealth of virginia and the federal and multistate challenges and has worked with federal enforcers to challenge and settle other mergers. Before coming to the Virginia AttorneyGenerals Office there has also spent time as a federal trade commission or, so thank you very much and with that i will turn it back over. Great. We will try to do interactive discussion today led by the moderator who ask questions and then we will reserve time at the end for questions from the audience. By way of background, occupational licensing and state return street on trade has received significant bipartisan attention in recent years. In 2015, the Obama Administration released a report outlining the growth of the restraints, its cost and benefits and impact on workers and work arrangements. Earlier this year, acting chairman Maureen Ohlhausen launch the Economic Liberty Task force. Chairman, if you could start us off to give us a little overview of what the main concerns are in the issues with the restraint. Thank you, koren. And thank you to everyone for hosting us today. This is one of my favorite topics. I spent a lot of my career focusing on this. Its no accident that its something the ftc has focused a bit on because we are an agency with Consumer Protection and antitrust and occupational licensing is at the intersection of those two issues. Often these restraints on entry to a profession are put forth as necessary for Consumer Protection reasons. Particularly wellplaced for an agency to think about that and say does that make sense to us, so the issue is occupational licensing. It has really come to the forefront because occupational licensing has exploded. Going back to 1950s a study suggest that fewer than 5 of occupations required a license and today the number is approaching 30 . What has changed in that time period . And the number of occupations and type of occupations that license has extended to has gotten i think beyond where we can say, of course you want your people to be licensed, someone doing a health and safety related thing to be licensed and , but now, we have cases where florists are licensed, where interior designers are licensed, where hair breeders are licensed and so you say what is the rationale and why this happening. About is sort of where the antitrust side of the analysis comes into play and one way i have characterized this is at the antitrust enforcers we need to be alert to private anti competitive conduct, but actions of the government can also be anti competitive and in a way that is a lot less likely to be eroded by market dynamics, so i often what i call the brother may i problem and its where you need your competitors permission 20 the market, so thats one of the issues we have seen where we have a board of active Market Participants saying, well, you need this license or to practice for our North Carolina dental case we want in the Supreme Court they said the practice of dentistry includes tooth whitening in the state of North Carolina. So, what are some the problems here . The problems are manifold and one certainly is anti competitive problem where you say well, consumers may pay more for service or have fewer choices or there may be less innovation happening because of these onerous licensing requirements, but there is also an impact on workers where workers have lost the ability to enter a field more freely. Ic clark neeley back their. Clark has paid wonderful attention to this issue and institute for justice has done fantastic work in this area, but i think it is one of the issues here is what about the individual worker in their ability even if they have a skill that we all agree requires a license, if they are moving from state to state they have to undergo that licensing all over again. Certainly, that isnt necessarily an ftc antitrust issue. We focus more on where you have an active Market Participants saying you cant compete with me come about on our advocacy role at the ftc is where we have tried to talk to states and really even other parts of the federal government about some of these issues because they are hitting certain populations quite a bit more onerous league than others and one is believe it or not military spouses. Members of the military move a lot and they get deployed different places around the country in a lot of times the trailing spouse has a job that requires a license and they have to get to rely send and recertify and undergo tons of training even if they had been active in the field already and it has led to i think one of the contributors that you have Unemployment Rate of almost 20 in the population. So, that is why i launch my Economic Liberty Task force at the ftc. I see it as a attempt to shine a spotlight on this issue. Certainly, we can continue to bring action, but mainly an advocacy role and i talk often about it being a coalition of the willing because i think a lot of groups consumer organizations and we mentioned bipartisan appeal has extended to a lot of the interest in this topic with a lot of different areas and i have worked with states, Governor Scott walker and i did a joint oped on this issue, so i think we are at a good time to make progress on this issue, but problem is the lack of competition, the higher prices, organization, but also that affects on the workers. Thank you. Sarah, we are really interested to hear from the states perspective on occupational licensing issues as acting chairman. Thank you to the federal society for inviting me to be honest panel today to be the spoiler on the panel. I would like to start with a disclaimer that the opinions i expressed today are only nine. They dont reflect necessarily the opinions of general markarian or the virginia ags office or any other persistence in the National Association of attorney general and it is a little odd for me because at 95 of the time i am anti trust counterparts and then there are the enforcers that we work with quite often. In this one little area we flip and become it defense attorney for state board and state agencies accused of anti competitive behavior because we are the antitrust experts in the state so be the state apologist on this panel its a backwards to me. So is the position of otherwise stanch state rights advocates like senator mike lee and senator ted cruz, but we will talk about their occupational licensing bill in a minute. So my personal perspective from the stateside is that i see a lot of value to this wider philosophical discussion about whether to any occupations require licenses. I also basically agree with the Supreme Court decision, but it is of the should be left up to the states to decide how to structure their economy, how to structure their governments and how to provide for the health, safety and welfare of their citizens. I applaud the ftcs efforts to educate state legislators and others about the dangers to the National Economy of too much licensing and i support their enforcement efforts. However, i do not support the federal governments attempt to preempt the states abilities to decide these issues were themselves or to dangle state action immunity as a carrot in order to course states in to providing supervision and that manner it seems that or to adopt its philosophy about that appropriation of us licensing. Under case law federalism allows state to decide which occupations they will license as opposed to professions that only require certification, registration or have no restrictions at all. Was a state legislature has authorized a licensing theme with Board Members the only question that remains in order for the board and its members to receive state action immunity or whether they need the twopronged count which is one with the board following clearly articulated state policy to displace competition and never to whether the board was actively supervised by a disinterested state official to ensure the boards actions were consistent with the policy. Bears some ambiguity theres some ambiguity in the opinion about whether that supervisor only has two determines the board actions were consistent with a policy or whether it goes behind that to see if it was unduly burdensome, but there is no requirement that the active supervisor inquire into whether the board used the least restrictive alternative to achieve the legislatures goal. Theres certainly no ability for the active supervisor or the state courts to disregard the state legislatures intent to displace competition in favor of a licensing scheme. Moreover, states could easily decide to get rid of all of their state boards and switch to the oversight of license occupation from the board to traditional state agencies with fulltime salaried state employees. That gets rid of the need for active supervision, but has many disadvantages with the most obvious that it would add millions to a states budget to employ those people because state Board Members currently serve with moat no caps no pay. It would also not necessarily change the state legislatures philosophy about which ones to license will make it harder to maintain a trust challenge against the say. While it would take care of the problem of Board Members acting in their individual selfinterest, it would not address a different problem which is regulatory capture of the state employees who sympathize with the people in the industries they regulate. Finally, i would add a very large majority of the work of occupational regulatory board does not restrict competition in any way. Board members who practice in the profession are usually the best people to evaluate standard care cases. Many cases involve ethics violations or behavioral standards of licensees. Medical licensees cooperate while intoxicated or take sexual improprieties with her patients or lawyers who dip into the escrow funds and while a licensing regime itself may restrict competition, most individual licensing decisions are ministerial and evolve no discretion on the part of the Board Members. Either the applicant checks the boxes for the objective criteria to receive a license or she doesnt and in that case its really massively unfair to subject the board or even worse to subject the individual Board Members to potential liability for a decision that the state legislature made in that the Board Members were statutorily required to follow. Thank you. I really appreciate the diversity of the views and again we went to have a conversation, so im hoping we will have a dialogue. Any thoughts from the other speakers . I would like to weigh in on your points and i think we agree on many many things. I also am sensitive to the fact that we operate in a federal system and that the states are sovereign and they can take these actions. I think there is a twofold question here, though. Should they be taking these actions . I care about liberty and went to advocate that before any policymaker whether its the federal level or the state level and i think thats a lot of what we are trying to do here is to say is this really best for your citizens. Its a two application public choice where you have concentrated benefits to the provider and they will lobby and say here are all the good things that licensing will do in the consumers who will pay the price dont even know its happening or their interests are very diffuse, so theyre not going to be there and so we are trying to step into the shoes of the consumers and workers and say consider these things also. But, on the second issue for the state action doctrine i think thats what its really try to do. Is trying to say is this truly an action of the state rather than the state and what my favorite phases from that case is casting a gauzy cloak, a state authority on what is essentially private economic conduct, so i think that is the other factor. Is this truly the states own action rather than sort of the evolving not to private actors who will often act in their own private interests. I would quickly respond that Board Members if you talk to them, they are really try