Trump-appointed judge calls for recognizing right to earn a living

Article Source: Reuters.com

Nov 8 - A conservative federal appeals court judge on Tuesday said the U.S. Supreme Court should recognize a fundamental constitutional right to earn a living, which he said would have protected small businesses "crippled" by government-mandated COVID-19 shutdowns.

U.S. Circuit Judge James Ho made that argument in a concurrence to a 5th U.S. Circuit Court of Appeals opinion rejecting a tanning salon's lawsuit against Columbus, Mississippi, over its government-ordered closure at the beginning of the pandemic in 2020.

"If we’re going to recognize various unenumerated rights as fundamental, why not the right to earn a living?" he asked.

Ho, an appointee of former Republican President Donald Trump, was one of the panel of three judges, all appointed by Republicans, that upheld the dismissal of a lawsuit Golden Glow Tanning Salon Inc filed against the city after being forced to close for seven weeks.

U.S. Circuit Judge Edith Jones, an appointee of former Republican President Ronald Reagan, authored the ruling, which at times echoed conservative complaints about the widespread shutdown orders aimed at deterring the spread of the coronavirus.

"Subsequent experience strongly suggests that draconian shutdowns were debatable measures from a cost-benefit standpoint, in that they inflicted enormous economic damage without necessarily 'slowing the spread' of Covid-19," she said.

But she said the "balance of impacts was not well understood at the time," and the court had to hold that a city ordinance requiring tanning salons but not churches, Walmart stores or liquor stores to close did not violate the salon's equal protection rights as it could be reasonably differentiated from them.

Jim Waide, a lawyer for the tanning salon at Waide & Associates, said he likely will ask the Supreme Court to review the case. A lawyer for the city did not respond to a request for comment.

Golden Glow had argued that the ordinance should be subject to the most stringent type of constitutional review, strict scrutiny, because it deprived business owners of a fundamental right, namely, the right to work.

But Jones, who was joined by Ho and Trump-appointed U.S. Circuit Judge Cory Wilson, said because the Supreme Court does not recognize such a right, the city's actions must simply be rationally related to a legitimate government interest.

Ho, in his concurrence, agreed with that result but questioned why the right to earn a living is not presently one of the numerous unenumerated rights recognized by the Supreme Court that are not contained in the U.S. Constitution's text.

He said such a right was "deeply rooted in our Nation’s history and tradition" yet the Supreme Court's current approach only protects "broad swath of non-economic human activities, while leaving economic activities out in the cold."

The case is Golden Glow Tanning Salon Inc v. City of Columbus, Mississippi, 5th U.S. Circuit Court of Appeals, No. 21-60898.

For Golden Glow: Jim Waide of Waide & Associates

For Columbus: Michael Chase of Mitchell, McNutt & Sams

(NOTE: This story has been updated with a comment from the plaintiff's lawyer.)