Petition for Writ of Certiorari — Altagracia Sanchez, et al., Petitioners v. District of Columbia Office of the State Superintendent of Education, et al.
Supreme Court briefDec 12, 2022
Ask Donna
What actually matters in this document.
Text
No. ______
In The
Supreme Court of the United States
ALTAGRACIA SANCHEZ, DALE SORCHER,
AND JILL HOMAN,
Petitioners,
v.
OFFICE OF THE STATE SUPERINTENDENT OF
EDUCATION AND DISTRICT OF COLUMBIA,
Respondents.
On Petition For A Writ of Certiorari
To The United States Court Of Appeals
For The District Of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
RENÉE D. FLAHERTY
Counsel of Record
ROBERT J. MCNAMARA
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
rflaherty@ij.org
rmcnamara@ij.org
Counsel for Petitioners
i
QUESTIONS PRESENTED
A District of Columbia administrative agency
promulgated regulations requiring day-care providers
to obtain a college degree (on top of existing, extensive
training requirements) to care for children ages zero
to three. The agency imposed these regulations with
no guidance from the legislature and no mechanism
in place for review by a court.
1.
Does the Due Process Clause require
complete and total judicial deference to these regulations?
2.
Does the nondelegation doctrine impose
any limits on delegating to administrative agencies
the power to enact such regulations?
ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioners Altagracia Sanchez, Dale Sorcher,
and Jill Homan were the plaintiffs in the D.C. District
Court and the appellants in the D.C. Circuit. Respondents Office of the State Superintendent of Education and the District of Columbia were the defendants in the D.C. District Court and the appellees in
the D.C. Circuit.
iii
STATEMENT OF RELATED CASES
Sanchez et al. v. Office of the State Superintendent of Educ. et al. (D.C. Cir.), No. 21-7014 (judgment
entered August 12, 2022)
Sanchez et al. v. Office of the State Superintendent of Educ. et al. (D.D.C.), No. 1:18-CV-00975 (judgment entered January 13, 2021)
Sanchez et al. v. Office of the State Superintendent of Educ. et al. (D.C. Cir.), No. 19-7072 (judgment
entered May 29, 2020)
Sanchez et al. v. Office of the State Superintendent of Educ. et al. (D.D.C.), No. 1:18-CV-00975 (judgment entered July 8, 2019)
iv
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
PARTIES TO THE PROCEEDINGS BELOW .......... ii
STATEMENT OF RELATED CASES ...................... iii
TABLE OF CONTENTS ........................................... iv
TABLE OF APPENDICIES ...................................... vi
TABLE OF AUTHORITIES .................................... vii
PETITION FOR A WRIT OF CERTIORARI ............ 1
OPINIONS BELOW ................................................... 1
JURISDICTION ......................................................... 1
RELEVANT PROVISIONS ....................................... 1
STATEMENT ............................................................. 2
REASONS FOR GRANTING THE PETITION ...... 11
I. There Is Confusion Over Which Individual Rights Merit More Than Complete
and Total Judicial Deference. Caring for
Children Is One of Them ............................... 11
A. The ruling below held that Sanchez’s
right to earn a living caring for children can be taken away for any reason—or for none ...................................... 12
B. Dobbs v. Jackson Women’s Health
Organization reaffirms that courts
must protect deeply rooted individual rights, and few rights are more
v
deeply rooted than the right to earn
a living caring for children ..................... 15
II. This Case Allows the Court to Address
Whether the Legislature May Give Administrative Agencies Unfettered Discretion to Decide Who May Work in Private
Employment .................................................... 19
III. This Case Is a Good Vehicle ........................... 22
CONCLUSION ......................................................... 23
vi
TABLE OF APPENDICES
Appendix A:
Opinion, United States Court of Appeals for
the District of Columbia Circuit (August 12,
2022) ............................................................ App. 1a
Appendix B:
Memorandum Opinion Granting Defendants’ Motion to Dismiss, United States District Court for the District of Columbia
(January 13, 2021) .................................... App. 27a
Appendix C:
Child Development Facilities Regulation
Act of 1998, D.C. Code §§ 7-2031 et seq. .. App. 54a
Appendix D:
Child Development Facilities: Licensing,
D.C. Mun. Regs. tit. 5-A1 ......................... App. 77a
vii
TABLE OF AUTHORITIES
Page
CASES
Arceneaux v. Treen,
671 F.2d 128 (5th Cir. 1982)............................... 14
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ......................................... 2, 22
Bolling v. Sharpe,
347 U.S. 497 (1954) ............................................... 7
Cruzan v. Director, Mo. Dep’t of Health,
497 U.S. 261 (1990) ............................................. 15
Dobbs v. Jackson Women’s Health Org.,
142 S. Ct. 2228 (2022)............................. 11, 15, 16
Eisenstadt v. Baird,
405 U.S. 438 (1972) ............................................. 15
FCC v. Beach Commc’ns, Inc.,
508 U.S. 307 (1993)......................................... 9, 12
Golden Glow Tanning Salon, Inc. v. City of
Columbus,
52 F.4th 974 (5th Cir. 2022) ............................... 18
Griswold v. Connecticut,
381 U.S. 479 (1965) ............................................. 15
Gundy v. United States,
139 S. Ct. 2116 (2019)................................... 19, 21
Hughes v. Talen Energy Mktg., LLC,
578 U.S. 150 (2016) ............................................. 20
Loving v. Virginia,
388 U.S. 1 (1967)................................................. 15
viii
McDonough v. Smith,
139 S. Ct. 2149 (2019)......................................... 20
Meadows v. Odom,
198 Fed. Appx. 348 (5th Cir. 2006) .................... 14
Meadows v. Odom,
360 F. Supp. 2d 811 (M.D. La. 2005) ................. 14
Meyer v. Nebraska,
262 U.S. 390 (1923) ....................................... 15, 18
Pierce v. Soc’y of Sisters,
268 U.S. 510 (1925) ....................................... 15, 18
Powers v. Harris,
379 F.3d 1208 (10th Cir. 2004)........................... 14
Rochin v. California,
342 U.S. 165 (1952) ............................................. 15
Sanchez v. OSSE,
45 F.4th 388 (D.C. Cir. 2022)
................................................ 1–2, 8–10, 12–14, 20
Sanchez v. OSSE,
959 F.3d 1121 (D.C. Cir. 2020) ............... 1, 7–8, 23
Sanchez v. OSSE,
No. 1:18-CV-00975,
2019 WL 2931285 (D.D.C. July 8, 2019) .............. 7
Skinner v. Oklahoma ex rel. Williamson,
316 U.S. 535 (1942) ............................................. 15
St. Joseph Abbey v. Castille,
712 F.3d 215 (5th Cir. 2013)............................... 13
Tiwari v. Friedlander,
26 F.4th 355 (6th Cir. 2022) ............................... 17
ix
Tiwari v. Friedlander,
No. 22-42 (U.S. July 12, 2022)............................ 16
Tiwari v. Friedlander,
2022 WL 17085182 (Nov. 21, 2022) ................... 16
Troxel v. Granville,
530 U.S. 57 (2000) ......................................... 15, 18
United States v. Carolene Products Co.,
304 U.S. 144 (1938) ............................................. 12
Uzuegbunam v. Preczewski,
141 S. Ct. 792 (2021)........................................... 23
Washington v. Glucksberg,
521 U.S. 702 (1997) ....................................... 15–16
STATUTES AND CONSTITUTIONAL PROVISIONS
28 U.S.C. 1254(1) ....................................................... 1
42 U.S.C. 1983 ............................................................ 7
42 U.S.C. 9858 et seq. ................................................. 3
42 U.S.C. 9858c(c)(2)(G)(iv) ....................................... 3
D.C. Code § 2-510 ....................................................... 3
D.C. Code § 2-531 ....................................................... 6
D.C. Code § 7-2011.03 ................................................ 6
D.C. Code § 7-2036(a)(2) ............................................ 6
D.C. Code §§ 7-2031 et seq ..................1, 2, 6, 8, 11, 21
Va. Decl. of Rights § 1 (1776) ................................... 16
RULES
Fed. R. Civ. P. 12(b)(6) ......................................2, 8, 22
x
REGULATIONS
63 D.C. Reg. 14640 (Dec. 2, 2016) ..............................3
63 D.C. Reg. 14640–14813 (Dec. 2, 2016).............. 2–3
65 D.C. Reg. 7032–7037 (June 29, 2018)............... 4, 7
D.C. Mun. Regs. tit. 5-A1 ................................... 1–3, 5
OTHER AUTHORITIES
1 William Blackstone, Commentaries ..................... 16
Emily D. Cahan, Past Caring: A History of U.S.
Preschool Care and Education for the Poor,
1820-1965, 25 (1989) ........................................... 18
Erica B. Grubb, Day-Care Regulation: Legal
and Policy Issues, 25 Santa Clara L. Rev.
303 (1985) ............................................................ 18
First Inaugural Address of Thomas Jefferson
(1801) ................................................................... 16
Geraldine Youcha, Minding the Children:
Child Care in America from Colonial Times
to the Present (2005) ........................................... 18
John Locke, Two Treatises of Government
(Edes & Gill 1773) (1690) ................................... 16
Letter from Madison to Jefferson (Oct. 17,
1788) .................................................................... 16
Nicholas Clairmont, D.C.’s Misguided Attempt
to Regulate Daycare, The Atlantic (July 11,
2017) ...................................................................... 6
xi
Oral Argument 34:37–35:27, Alaska Cent. Express
Inc. v. United States,
145 Fed. Appx. 211 (9th Cir. 2005),
https://cdn.ca9.uscourts.gov/datastore/media/2
005/07/13/03-35902.mp3 .................................... 14
Oral Argument 7:19, 8:15, Sanchez v. OSSE,
45 F.4th 388 (D.C. Cir. 2022),
https://tinyurl.com/yc52byw5 ....................... 13–14
Robert C. Farrell, Successful Rational Basis
Claims in the Supreme Court from the 1971
Term Through Romer v. Evans, 32 Ind. L.
Rev. 357 (1999) ................................................... 13
The High Price of Great Books Day Care,
Editorial, Wall St. J. (Aug. 22, 2022) ................. 12
Timothy Sandefur, The Right To Earn A
Living, 6 Chap. L. Rev. 207 (2003) ..................... 16
1
PETITION FOR A WRIT OF CERTIORARI
Petitioners seek a writ of certiorari to review
the judgment of the United States Court of Appeals
for the District of Columbia Circuit.
OPINIONS BELOW
The opinion of the court of appeals, App. 1a, is
reported at 45 F.4th 388. The district court’s opinion,
App. 27a, is reported at 513 F. Supp. 3d 101.
JURISDICTION
The judgment of the court of appeals was entered on August 12, 2022. On September 20, 2022,
Chief Justice Roberts extended the time to file a petition for a writ of certiorari through December 12,
2022. This petition is timely filed on December 12,
2022. Petitioners invoke this Court’s jurisdiction under 28 U.S.C. 1254(1).
RELEVANT PROVISIONS
The Fifth Amendment to the United States
Constitution provides, in relevant part, “No person
shall * * * be deprived of life, liberty, or property,
without due process of law.”
The text of the District of Columbia’s Child Development Facilities Regulation Act of 1998 (D.C.
Code §§ 7-2031 et seq.) is reproduced at App. 54a.
The text of the District of Columbia’s regulations governing the licensing of child development
2
facilities (D.C. Mun. Regs. tit. 5-A1) is reproduced at
App. 77a.
STATEMENT
Altagracia Sanchez runs a day care in her
home in the District of Columbia.1 Like many other
day-care providers in the District, Sanchez immigrated to the United States to pursue her dreams. She
opened her day care in 2006 and supports her family
with the income she earns. For ten years, Sanchez
cared for dozens of infants and toddlers lovingly and
competently. She scrupulously complied with the District’s extensive training, continuing education, staffing, and facilities requirements. She took pride in her
business because children are her passion. Families
trusted her; her day care flourished.
But in 2016, the District told Sanchez that
wasn’t enough. Respondent Office of the State Superintendent of Education (OSSE), the administrative
agency charged by the District with regulating day
cares, issued a rulemaking requiring most of the city’s
day-care providers to obtain college degrees on top of
existing annual training and professional development requirements.2 This case is about whether
courts must blindly defer to regulations that strip
The panel below dismissed this case under Federal
Rule of Civil Procedure 12(b)(6). App. 2a–3a. This statement
draws from the allegations of the complaint, which must be “accepted as true.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
2 Notice of Final Rulemaking, 63 D.C. Reg. 14640–14813
(Dec. 2, 2016). OSSE’s rulemaking repealed the District’s existing day-care regulations and created new regulations under D.C.
Mun. Regs. tit. 5-A1 (Child Development Facilities: Licensing).
App. 77a.
1
3
Sanchez of her right to earn a living caring for children without providing any public benefit at all. It is
also about whether OSSE, an administrative agency,
should have the authority to strip Sanchez of her
rights with no guidance from the legislature and no
mechanism in place for review by a court.
When OSSE promulgated the college requirement in 2016, the agency’s sole statutory directive
was to “promulgate all rules necessary” to establish
“[m]inimum standards of operation of a child development facility concerning staff qualification, requirements and training[.]” App. 61a.3 Nothing instructed
OSSE on what to prioritize. And the agency cared little about what day-care providers like Sanchez
thought of the college requirement, refusing to translate the rulemaking into the languages spoken by the
District’s diverse workforce when a request to do so
was made.4 OSSE knew it would never be held accountable anyway, since rulemakings are not “contested cases” subject to judicial review under the District’s Administrative Procedure Act.5 No entity other
than OSSE (that is, no legislature or court) had any
3 The rulemaking’s stated purpose was to comply with a
federal law appropriating funds to the states for child-care programs. 63 D.C. Reg. 14640 (Dec. 2, 2016) (citing Child Care and
Development Block Grant Act of 2014, 42 U.S.C. 9858 et seq.).
The law expressly did not call for increased credentials for daycare providers. See 42 U.S.C. 9858c(c)(2)(G)(iv) (“The Secretary
[of Health and Human Services] shall not require an individual
or entity that provides child care services for which assistance is
provided * * * to acquire a credential to provide such services.”).
4 See 63 D.C. Reg. 14643–14644 (Dec. 2, 2016) (“District
agencies, including OSSE, are not legally required to provide the
requested translations of the proposed rulemaking.”).
5 D.C. Code § 2-510.
4
authority to review the rulemaking. The agency’s
word was final and its discretion unbounded.
Unsurprisingly, the result was that OSSE’s
new regulations were completely divorced from the
harsh realities of day care in the District of Columbia.
The District is the most expensive place to obtain
child care in the country. The city’s universal pre-kindergarten program means that day cares serve only
infants and toddlers ages zero to three. Younger children are more expensive to care for than older children, and the District’s onerous rents and zoning requirements impose even more expenses and obstacles. As a result, day cares operate on razor-thin margins. The average day-care provider in the District
earns about as much as a fast-food cook.
The high costs of care are passed along to parents, who must also deal with a shortage of care. Parents join waitlists as soon they become pregnant and
hope to receive a spot for which they will pay over
$2,000 per month—more than the average cost of tuition at a local community college. Although the college requirement has not yet gone into effect,6 many
day cares in the District already refuse to hire workers without a degree. The result has been rising prices
that many families cannot pay.
The District’s new regulations require in-home
providers who care for more than seven children (like
6 Two months after Sanchez filed this lawsuit, OSSE is-
sued another rulemaking extending the deadline for compliance
for in-home providers like Sanchez from December 2019 to December 2023. Notice of Final Rulemaking, 65 D.C. Reg. 7032–
7037 (June 29, 2018).
5
Sanchez) to obtain an associate’s degree with a major
in an early-childhood field by 2023.7 App. 290a. This
piece of paper is unlikely to make Sanchez (or anyone
else) a better caregiver. College programs in earlychildhood education vary widely in what they teach.
Most of the required classes have nothing to do with
caring for children. Just ask anyone currently attending Trinity University, which requires classes on
“comparative religions” and “science of the environment,” among other inapposite classes, to graduate
with an early-childhood degree. “Early childhood education” is not a uniform degree program, and so requiring a degree in “early childhood education” does
not guarantee that an individual will have followed
any particular curriculum, learned any specific skill,
or studied any specific topic for any certain number of
hours. So long as their diploma has the label “early
childhood” on it, OSSE doesn’t care what day-care
providers learn.
Sanchez values education. She has a law degree from her home country. She hasn’t attended college in the United States, but there are many reasons
for this. First, Sanchez already has a Child Development Associate credential, the private certificate that
OSSE required to run an in-home day care before the
2016 regulations. A Child Development Associate credential is affordable, practical training for day-care
providers. Crucially, it is possible to obtain the certificate in Spanish. Like many of the District’s day-care
providers, Sanchez speaks English well enough to run
7 Teachers in day-care centers will be required to obtain
an associate’s degree with a major in an early-childhood field or
at least 24 credit hours in an early-childhood field by 2023. App.
275a.
6
her business and get along well in her adopted country, but she cannot read or write English at a college
level. No early-childhood programs in the District offer classes in Spanish. Even if it were possible for
Sanchez to get a degree in English, like many other
day-care providers, she cannot afford the time and
money required to attend college.
OSSE’s new rules have never been popular.8 A
few months after the first rulemaking, the District’s
City Council moved to exercise some control over
OSSE by amending the District’s Child Development
Facilities Regulation Act of 19989 to require all of
OSSE’s future rulemakings to be subject to a 30-day
period of review by the Council.10 The Council also ordered OSSE to “conduct a study to assess the impact
of [the college requirement] on staff members and the
cost of child care in the District.”11 OSSE has not conducted the study.12
8 See Nicholas Clairmont, D.C.’s Misguided Attempt to
Regulate
Daycare,
The
Atlantic
(July
11,
2017),
https://www.theatlantic.com/business/archive/2017/07/dc-daycare-regulations-credentialism/532449/.
9 D.C. Code §§ 7-2031 et seq. App. 54a.
10 Child Development Facilities Regulation Act of 2017,
D.C. Act 22-10 (codified at D.C. Code § 7-2036(a)(2)).
11 Child Care Study Act of 2017, D.C. Law 22-11 (codified
at D.C. Code § 7-2011.03).
12 Sanchez’s counsel has requested the study twice
through the District’s Freedom of Information Act, D.C. Code
§§ 2-531 et seq., most recently in October 2022. OSSE responded
to both requests with no responsive documents.
7
The Council’s actions were too little, too late.
Sanchez (along with hundreds of other day-care providers) faced a “quandary.” Sanchez v. OSSE, 959
F.3d 1121, 1126 (D.C. Cir. 2020). Sanchez couldn’t afford to shut down her day care to attend classes. She
couldn’t afford to pay tuition and didn’t want to take
out loans. She was stuck.
In 2018, Sanchez chose to fight back. Invoking
42 U.S.C. 1983, she sued OSSE and the District in the
U.S. District Court for the District of Columbia along
with another day-care provider and a parent. They
claimed that the District’s regulations violated their
individual rights under the Fifth Amendment to the
U.S. Constitution13 and that OSSE’s exercise of untrammeled discretion free from any legislative or judicial constraint constituted an unlawful delegation
of legislative authority.
In 2019, the district court dismissed Sanchez’s
claims on threshold justiciability grounds.14 The court
Petitioners brought two claims under the Fifth
Amendment: substantive due process and equal protection. App.
7a. The Due Process Clause of the Fifth Amendment also guarantees equal protection. Bolling v. Sharpe, 347 U.S. 497, 499
(1954).
14 Sanchez v. OSSE, No. 1:18-CV-00975, 2019 WL
2931285, at *6 (D.D.C. July 8, 2019). Two months after Sanchez
filed this lawsuit, OSSE issued another rulemaking, which made
Sanchez and a limited group of other in-home providers eligible
to obtain temporary, renewable waivers from the college requirement. Notice of Final Rulemaking, 65 D.C. Reg. 7032–7037
(June 29, 2018). Sanchez received a waiver in April 2019, renewed the waiver in 2022, and must reapply to renew the waiver
again every three years.
13
8
of appeals reversed.15 Sanchez returned to the district
court, which dismissed the case under Federal Rule of
Civil Procedure 12(b)(6). App. 27a.
A panel of the D.C. Circuit affirmed. App. 3a.
The panel concluded that OSSE’s regulations “implicate no fundamental rights,” and so rational-basis review applied. App. 8a. Purporting to be “sensitive to
the burdens that OSSE’s regulations impose on daycare workers,” App. 15a, the panel nonetheless declared that OSSE can subject Sanchez to any hardships it wishes.
The panel acknowledged that day-care providers must take “[a] variety of courses outside the earlychildhood major, from math and English to art and
history,” but reasoned that those courses “could be
beneficial to someone tasked with the educational development of toddlers—as any adult who has been
flummoxed by a two-year-old repeatedly asking ‘why’
can attest.” App. 13a. If OSSE can force Sanchez to
take college classes in anything a two-year-old might
ask about before taking care of toddlers for a living,
then OSSE can do just about anything.
OSSE can force Sanchez to take “fencing or
Shakespeare” because toddlers might be curious
about both. App. 12a. Any “idiosyncratic course requirement[]” is just fine, no matter if it does nothing
to make Sanchez a better caregiver. App. 12a–13a.
OSSE was under no obligation whatsoever to ground
Sanchez v. OSSE, 959 F.3d 1121, 1126 (D.C. Cir.
2020). The court of appeals held that OSSE’s “discretionary,
time-limited and revocable waiver” did not render Sanchez’s
claims moot or unripe. Id. at 1125–1126.
15
9
its rulemaking in reality because “[u]nder rationalbasis review, the policy choices of the political
branches are ‘not subject to courtroom fact-finding
and may be based on rational speculation unsupported by evidence or empirical data.’” App. 14a (quoting FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 315
(1993)).
The panel valued Sanchez’s right to care for
children so little that it did not apply the ordinary
pleading standard to her claims. The panel held that
“[a] plaintiff bringing a constitutional challenge to a
regulation on rationality grounds * * * faces the unenviable task of refuting every conceivable basis
which might support it.” App. 10a (cleaned up).
Sanchez managed to do just that, but the panel did
not “accept [Sanchez’s] factual allegations as true and
draw all reasonable inferences in [her] favor.” Contra
App. 9a. Despite Sanchez’s allegations that “taking
expensive college classes would serve no purpose,”
App. 6a, the panel held that “OSSE could reasonably
conclude that the coursework required to earn an associate’s degree in early-childhood education would
be, generally speaking, relevant to the work of childcare providers.” App. 12a–13a. Despite Sanchez’s allegations that “the college requirements do absolutely
nothing to further any legitimate government interest,” App. 8a (cleaned up), the panel held that “OSSE
* * * could have rationally concluded that requiring
childcare workers to complete a predominantly relevant course of study will improve the quality of care
young children receive.” App. 13a.
The panel held Sanchez to an impossible standard: “A plaintiff bringing a constitutional challenge to
10
a regulation on rationality grounds * * * faces the unenviable task of refuting every conceivable basis
which might support it.” App. 10a. By dismissing her
claims at the outset, the panel deprived Sanchez of
the opportunity to build a record to refute OSSE’s justifications for the college requirement: “A conceivably
rational justification for the college requirements is
readily apparent, and, in this context, that is all due
process requires.” App. 15a.
The panel also held that the limitless power to
strip Sanchez of her right to care for children can be
wielded by OSSE with impunity. The panel dismissed
Sanchez’s nondelegation claim, holding that “[u]nder
the current standard, the Facilities Act sets forth an
intelligible principle to guide OSSE’s regulation of
daycares.” App. 21a–23a. It did not identify a principle in the statutory text, but instead found that the
principle was implied—and, even then, the most the
Court could say was that OSSE should impose requirements “relate[d] to the care, supervision, and
guidance of children.” Ibid. But even that vague statement was plenty: After all, the panel argued, “the
United States Code contains many comparable delegations,” citing to statutes that authorize federal authorities to set minimum standards for occupations
like airport security personnel or physician assistants
providing services paid for by federal dollars. App.
23a–24a. Seeing no apparent difference between allowing an agency to set standards for jobs like those
and allowing an agency to decree that a longtime private entrepreneur like Sanchez was no longer good
enough to be allowed to run her business, the panel
affirmed. Ibid. Judge Randolph concurred with the
panel’s decision but noted that this Court’s
11
“nondelegation jurisprudence appears to be in a state
of flux.” App. 26a.
This petition followed.
REASONS FOR GRANTING THE PETITION
This case asks whether judges must blindly defer to administrative regulations that require a college degree to care for two-year-olds. Day-care providers have a constitutional right to engage in their occupation, but there is confusion over which rights deserve more than complete and total deference from
the courts, and about whether the nondelegation doctrine places any limits on an administrative agency’s
ability to strip individuals of their deeply rooted
rights. This case is a good vehicle to take a first step
toward resolving these issues by deciding whether the
right to engage in one of the oldest, most common occupations—caring for children—can be left to the
whims of an administrative agency and dismissed
with no judicial scrutiny whatsoever.
I.
There Is Confusion Over Which Individual Rights Merit More Than Complete and
Total Judicial Deference. Caring for Children Is One of Them.
The ruling below held that Sanchez’s right to
earn a living caring for children can be taken away for
any reason—or for none. This cannot be. Dobbs v.
Jackson Women’s Health Organization, 142 S. Ct.
2228 (2022), reaffirms that courts must protect deeply
rooted individual rights. If the Court intends to protect rights that are “essential to our Nation’s ‘scheme
of ordered liberty,’” id. at 2246, then the lower courts
12
must know which rights are so essential. Only this
Court can determine whether the right to engage in a
common occupation—in this case, one of the oldest
and most common occupations, caring for children—
deserves any judicial scrutiny at all.
A. The ruling below held that Sanchez’s
right to earn a living caring for children can be taken away for any reason—or for none.
The panel’s decision, although unpopular,16 is
unsurprising. The right to engage in a common occupation often receives little to no protection under modern doctrine despite its deep roots in American history
and tradition.
The panel held that the District’s regulations
“implicate no fundamental rights,” App. 8a, and that
meant that Sanchez’s claims never stood a chance.
Since United States v. Carolene Products Co., 304 U.S.
144, 152 & n.4 (1938), rights seen as non-fundamental, including the right to engage in a common occupation, have been consistently reviewed under the rational-basis test. The panel below applied the weakest, most deferential version of that test to hold that
the college requirement “must be upheld ‘if there is
any reasonably conceivable state of facts that could
provide a rational basis’” for it. App. 9a (quoting FCC
v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993))
16 See Editorial, The High Price of Great Books Day Care,
Wall St. J. (Aug. 22, 2022), www.wsj.com/articles/the-high-priceof-great-books-daycare-federal-court-sri-srinivasan-ilumisanchez-washington-d-c-11660770791.
13
According to the panel, if a two-year-old can
dream it up, OSSE can require a day-care provider to
study it for two years. Or even ten years. See Oral Argument (8:15), Sanchez v. OSSE, 45 F.4th 388 (D.C.
Cir. 2022) (Judge Katsas: “Suppose you required that
these folks have a Ph.D.?” A: “* * * I think for the
Ph.D. hypothetical, that would be constitutional as a
straightforward application of the standard.”).17 And
if day-care providers need a degree, then why not parents? OSSE is not “pressing” that theory (for now). Id.
at 7:19 (Judge Katsas: “Under that theory, nobody
should be a parent unless they have a college degree,
right?” A: “That’s not the theory we’re pressing here,
Your Honor, because we’re not saying that these requirements are necessary. And necessity isn’t the test
for rational basis.”).
For anyone who has ever met a two-year-old, it
is not “reasonably conceivable” to believe that a college degree would help one answer her questions. But
under the panel’s wildly permissive version of the rational-basis test,18 the only limit to a regulator’s
power is her imagination. And like toddlers, regulators love to use their imaginations. The Department
of Justice, for instance, has gone as far as arguing
that Congress could rationally justify a law because
17 Available at https://tinyurl.com/yc52byw5.
18 This Court sometimes (but not often) applies meaning-
ful review to rational-basis claims. See Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the
1971 Term Through Romer v. Evans, 32 Ind. L. Rev. 357, 416–
417 (1999). See also St. Joseph Abbey v. Castille, 712 F.3d 215
(5th Cir. 2013) (striking down Louisiana regulation preventing
monks who were not licensed funeral directors from selling caskets based on record evidence that doing so did not protect the
public).
14
“space aliens are visiting this planet in invisible and
undetectable craft.”19 Judges have active imaginations as well. In Meadows v. Odom, a district court
upheld Louisiana’s licensing law for florists because
of “a flower that has some type of infection, like, dirt
that remained on it when it’s inserted into something
they’re going to handle.” 360 F. Supp. 2d 811, 824
(M.D. La. 2005), vacated as moot, 198 Fed. Appx. 348
(5th Cir. 2006). The Tenth Circuit held that it was rational to require online casket sellers to embalm 25
corpses for practice. Powers v. Harris, 379 F.3d 1208,
1225 (10th Cir. 2004).
OSSE did not invoke aliens to justify the college requirement, but it may as well have. Sanchez
alleged in her complaint that the college requirement
does absolutely nothing to further any legitimate government interest. App. 8a. She alleged that she cannot go to college. App. 6a. But no burden was too high;
no demand was too unreasonable. The panel’s supine
legal standard was decisive.
OSSE’s counsel was forthcoming at argument:
The college requirement isn’t “necessary.” Oral Argument at 7:19 (OSSE’s counsel: “We’re not saying that
these requirements are necessary. And necessity isn’t
the test for rational basis.”). But the panel below still
“cup[ped] [its] hands over [its] eyes and then imagine[d] if there could be anything right with” the District’s day-care regulations. Arceneaux v. Treen, 671
F.2d 128, 136 n.3 (5th Cir. 1982) (Goldberg, J.,
19 Oral Argument 34:37–35:27, Alaska Cent. Express Inc.
v. United States, 145 Fed. Appx. 211 (9th Cir. 2005),
https://cdn.ca9.uscourts.gov/datastore/media/2005/07/13/0335902.mp3.
15
concurring). Sanchez’s right to earn a living caring for
children is far too important to be subject to rationalbasis review.
B. Dobbs v. Jackson Women’s Health Organization reaffirms that courts must
protect deeply rooted individual
rights, and few rights are more deeply
rooted than the right to earn a living
caring for children.
Many prominent judges, justices, and scholars
have criticized the rational-basis test, but only this
Court can rescue a right from the rubbish heap. The
right to earn a living caring for children is a good
place to start. People have been caring for each other’s
children since the dawn of time. Indeed, one cannot
imagine a free, orderly society without people you can
pay to watch your kids.
This Court recently reaffirmed that rights
“that are not mentioned in the Constitution” “must be
‘deeply rooted in this Nation’s history and tradition’
and ‘implicit in the concept of ordered liberty.’”20
Dobbs, 142 S. Ct. at 2242 (quoting Washington v.
20 This Court has identified the right to marry, Loving v.
Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to marital privacy,
Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity,
Rochin v. California, 342 U.S. 165 (1952); to refuse unwanted
lifesaving medical treatment, Cruzan v. Director, Mo. Dep’t of
Health, 497 U.S. 261 (1990); and to make decisions concerning
the care, custody, and control of one’s children, Troxel v. Granville, 530 U.S. 57 (2000); Pierce v. Soc’y of Sisters, 268 U.S. 510
(1925); Meyer v. Nebraska, 262 U.S. 390 (1923).
16
Glucksberg, 521 U.S. 702, 721 (1997)). In determining
whether a right is “deeply rooted” and “essential to
our Nation’s scheme of ordered liberty,” the Court has
“engaged in a careful analysis of the history of the
right at issue.” Id. at 2246 (internal quotation marks
omitted). A careful historical analysis shows that the
right to engage in a common occupation is one of the
most “deeply rooted” rights of them all. See Pet. for
Writ of Certiorari, Tiwari v. Friedlander, No. 22-42
(U.S. July 12, 2022), cert. denied 2022 WL 17085182
(Nov. 21, 2022).
From English common law to the founding of
this country, the right to earn a living has been considered fundamental. See, e.g., Timothy Sandefur,
The Right To Earn A Living, 6 Chap. L. Rev. 207, 209–
217 (2003) (citing cases from the 14th century onward); 1 William Blackstone, Commentaries *427 (“At
common law, every man might use what trade he
pleased.”); John Locke, Two Treatises of Government
15 (Edes & Gill 1773) (1690) (“The labour of his body,
and the work of his hands, * * * are properly his.”);
Va. Decl. of Rights § 1 (1776) (George Mason) (“[A]ll
men * * * have certain inherent rights * * * namely,
the enjoyment of life and liberty, with the means of
acquiring and possessing property, and pursuing and
obtaining happiness and safety.”); Letter from Madison to Jefferson (Oct. 17, 1788) (expressing that monopolies were “justly classed among the greatest nuisances in Government”); First Inaugural Address of
Thomas Jefferson (1801) (describing good government
as “leav[ing individuals] to regulate their own pursuits of industry and improvement” and “not tak[ing]
from the mouth of labor the bread it has earned”).
17
In light of this history, Judge Sutton of the
Sixth Circuit has called for this Court to reconsider
the right to engage in a common occupation:
many thoughtful commentators, scholars, and judges have shown that the
current deferential approach to economic regulations may amount to an
overcorrection in response to the Lochner era at the expense of otherwise constitutionally secured rights. * * * And
is there something to Justice Frankfurter’s criticism of the dichotomy between
economic rights and liberty rights, a dichotomy first identified in Carolene
Products? * * * But any such recalibration of the rational-basis test and any
effort to create consistency across individual rights is for the U.S. Supreme
Court, not our court, to make.
Tiwari v. Friedlander, 26 F.4th 355, 368–369 (6th Cir.
2022) (citations omitted). Likewise, Judge Ho of the
Fifth Circuit observed:
The Supreme Court has recognized a
number of fundamental rights that do
not appear in the text of the Constitution. But the right to earn a living is not
one of them—despite its deep roots in
our Nation’s history and tradition. * * *
Cases like this nevertheless raise the
question: If we’re going to recognize
various unenumerated rights as fundamental, why not the right to earn a
18
living? * * * But that is for the Supreme
Court to determine.
Golden Glow Tanning Salon, Inc. v. City of Columbus,
52 F.4th 974, 981, 984 (5th Cir. 2022) (Ho, J., concurring).
Judge Ho and Judge Sutton are correct. Only
this Court can determine whether the right to engage
in a common occupation is deeply rooted in our Nation’s history and tradition. Caring for children is one
of the oldest occupations.21 And this Court has already held in cases like Troxel, Pierce, and Meyer that
21 Caring for children is not new, but government licensing of day cares is “a relatively recent development.” Erica B.
Grubb, Day-Care Regulation: Legal and Policy Issues, 25 Santa
Clara L. Rev. 303, 305 (1985); see also Emily D. Cahan, Past
Caring: A History of U.S. Preschool Care and Education for the
Poor, 1820-1965, 25 (1989) (noting that a “campaign to raise day
nursery standards by means of state regulation” via mandatory
licensure did not arise until the mid-1920s—a century after the
basic framework of modern day care developed—and was “only
partially successful” because, even where day nurseries were
subject to some form of regulation, these licensure requirements
“were not strictly enforced”). Indeed, by the end of World War II,
following the massive expansion of day-care operation in the
United States driven by the need to employ women in war industries, less than 25% of states had any licensing laws specifically
directed at day care. Grubb, supra, at 313 (noting that, by 1944,
only nine states had “specific day-care licensing laws rather than
general laws regulating foster care”). Yet this lack of regulation
persisted although the system of day care as it existed in World
War II—and how it largely still remains—had been established
well before the Civil War. See Geraldine Youcha, Minding the
Children: Child Care in America from Colonial Times to the Present (2005) (discussing the history of child care in the United
States, from its origins in the infant school movement in the
1820s).
19
raising and caring for children is one of the deeply
rooted areas where government power may not tread
unimpeded. Do those rights change simply because
someone like Sanchez also earns money as she cares
for the children entrusted to her care? The panel below clearly thought so—even though, as Judge Ho
rightly observed, there is no historical basis for that
belief. If there exists any protectable right to earn a
living in the Constitution, surely the right to earn a
living by caring for children falls within it. The Court
should grant certiorari and say so.
II.
This Case Allows the Court to Address
Whether the Legislature May Give Administrative Agencies Unfettered Discretion
to Decide Who May Work in Private Employment.
The panel opinion below made short work of
the nondelegation claim here. And understandably so:
“[S]ince 1935, [this] Court has uniformly rejected nondelegation arguments and has upheld provisions that
authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Gundy v.
United States, 139 S. Ct. 2116, 2130–2131 (2019)
(Alito, J., concurring). If that is the standard, then
this regulation—undeniably an important rule
adopted pursuant to an extraordinarily capacious
standard—falls comfortably within it.
The problem is that it is not at all clear this
should be the standard. At least four Members of this
Court have suggested it should not. See Ibid. (Alito,
J., concurring); accord id. at 2138–2140 (Gorsuch, J.,
joined by Roberts, C.J., and Thomas, J., dissenting)
(explaining that the modern practice of upholding any
20
delegation so long as it is cabined by an “intelligible
principle,” however vague, “has no basis in the original meaning of the Constitution, in history, or even in
the decision from which it was plucked”). It is no wonder, then, that lower courts, as Judge Randolph did
below, have noticed this “state of flux” in the Court’s
nondelegation jurisprudence. App. 26a.
But there is no reason for this state of flux to
continue. If any “intelligible principle,” however
broad, will be enough to uphold a delegation, the
Court should say so. Alternatively, if the Court intends to return to a more historically grounded understanding of the separation of powers, lower courts
should know that as well.
And this case represents a perfect opportunity
to resolve the confusion in the Court’s modern nondelegation doctrine.22 The “intelligible principle” supporting the college requirement is as vague as they
come: The agency is told only to set “minimum qualifications [for day-care workers that] relate to the care,
22 This Court has never determined whether the non-delegation doctrine applies with equal force to the legislative power
of the District of Columbia, and it need not do so here. Instead
(following both the district and appellate courts) it can assume
without deciding that the doctrine applies and answer the question that resolved the dispute between the parties below. Cf.
McDonough v. Smith, 139 S. Ct. 2149, 2155 (2019) (assuming
without deciding that the right at issue, stated as the “right not
to be deprived of liberty as a result of the fabrication of evidence
by a government officer,” arises under the Due Process Clause
(cleaned up)); Hughes v. Talen Energy Mktg., LLC, 578 U.S. 150,
161 (2016) (assuming without deciding that the plaintiff utility
companies may seek declaratory relief under the Supremacy
Clause).
21
supervision, and guidance of children” App. 62a. But
that, at most, is a description of the area in which legislative power has been delegated. It says nothing
about how that power should be exercised. It allows
the agency (as it did for years) to decree that day-care
providers must take certain specified training
courses. It allows the agency to decide (as it suddenly
did in 2016) that day-care providers need a college degree. Indeed, given the combination of the breadth of
the delegation and the extraordinarily deferential
version of the rational-basis test applied below, it is
difficult to imagine a regulation that would be impermissible. Can day-care providers be required to hold
a master’s degree? Bench-press 150 pounds? Speak
English—or Spanish or Finnish—with the fluency of
a native? There is no obvious reason why not. To the
extent there is an “intelligible principle” animating
the delegation of legislative authority, it is simply
that the agency should regulate day-care providers—
by its own lights, in its own discretion.
That is a delegation of legislative power. And
it is a delegation that fits into none of the historicallygrounded, permissible delegations enumerated in
Justice Gorsuch’s Gundy dissent. It does not, for example, set a general policy but allow the agency to fill
in less-important details. Gundy, 139 S. Ct. at 2136
(Gorsuch, J., dissenting). It does not call upon the executive to make determinations that hinge on extensive fact-finding. Ibid. It does not delegate powers,
like those over foreign affairs, that already reside in
part within the executive. Ibid. Instead, it takes a
quintessential question of “private conduct”—who is
permitted to watch other people’s children in their
22
own home—and relegates it to the sole discretion of
an administrative agency. Ibid.
Perhaps, as the lower court held, that is a legislative question that can be confided to the sole discretion of unelected bureaucrats. But perhaps regulations of private conduct—particularly private conduct
that has been widespread since long before the Constitution itself—should originate in the legislature rather than the executive. This Court’s cases are ambivalent about which of these is true, and certiorari
should be granted to resolve that important, fundamental question of constitutional law.
III.
This Case Is a Good Vehicle.
This case presents a good vehicle to resolve the
questions presented. The court of appeals dismissed
Sanchez’s claims under Rule 12(b)(6). Additionally,
the court of appeals already found that Sanchez’s
claims are justiciable. These circumstances make the
Court’s job simple: determine the applicable legal
standards and remand to the district court to decide
whether Sanchez has stated claims.
First, the court of appeals dismissed this case under Rule 12(b)(6). App. 3a. At this early stage, all factual allegations must be “accepted as true,” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009), and the Court need
not sort through a complicated record or weigh the
merits of Sanchez’s claims. The Court need only determine whether Sanchez’s right to earn a living caring for children deserves any protection at all, and
whether the nondelegation doctrine places any restraint on administrative agencies at all. The district
court can follow the Court’s instructions on remand.
23
Second, the court of appeals already found that
Sanchez’s claims are ripe and were not mooted by
OSSE’s changes to the regulations. Sanchez, 959 F.3d
at 1126. Sanchez’s claims for nominal damages also
insure against mootness. See Uzuegbunam v. Preczewski, 141 S. Ct. 792, 802 (2021). Resolution of these
threshold issues further simplifies the Court’s task.
CONCLUSION
The Court should grant the petition.
Respectfully submitted,
RENÉE D. FLAHERTY
Counsel of Record
ROBERT J. MCNAMARA
INSTITUTE FOR JUSTICE
901 N. Glebe Rd., Ste. 900
Arlington, VA 22203
(703) 682-9320
rflaherty@ij.org
rmcnamara@ij.org
Counsel for Petitioners
DECEMBER 12, 2022
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.