Amicus Curiae Brief — Minnesota Deer Farmers Association, et al., Petitioners v. Sarah Strommen, Commissioner of the Minnesota Department of Natural Resources, or her successor, et al.

No. 25-533

In the Supreme Court of the United States

__________

MINNESOTA DEER FARMERS ASSOCIATION, ET AL.,

Petitioners,

v.

SARAH STROMMEN, COMMISSIONER OF THE MINNESOTA

DEPARTMENT OF NATURAL RESOURCES, OR HER

SUCCESSOR, ET AL.

Respondents.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eighth Circuit

__________

BRIEF OF THE CATO INSTITUTE AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

__________

December 1, 2025

Thomas A. Berry

Counsel of Record

Dan Greenberg

Sam Rutzick

CATO INSTITUTE

1000 Massachusetts Ave., NW

Washington, DC 20001

(443) 254-6330

tberry@cato.org

i

QUESTION PRESENTED

Whether the right to pursue one’s chosen profession is a fundamental right under the Fourteenth

Amendment.

ii

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ........................................... i

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICUS CURIAE ............................. 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ................................................................ 3

I. THE LOWER COURT

MISCHARACTERIZED THE NATURE

OF THE FUNDAMENTAL RIGHT AT

ISSUE IN THIS CASE. ................................... 3

II. THE PURSUIT OF A CHOSEN

PROFESSION IS A FUNDAMENTAL

RIGHT. ............................................................ 5

A. Glucksberg’s Two-Part Test Identifies

a Fundamental Right. ................................ 5

B. The Right to Pursue One’s Chosen

Profession Is Deeply Rooted in the

Nation’s History and Tradition. ................ 6

C. The Right to Choose and Pursue a

Profession Is Implicit in the Concept

of Ordered Liberty. .................................. 11

CONCLUSION .......................................................... 13

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Allgeyer v. Louisiana, 165 U.S. 578 (1897) ................. 9

Barsky v. Bd. of Regents, 347 U.S. 442 (1954) .......... 12

Butchers’ Union Co. v. Crescent City Co., 111

U.S. 746 (1884) ......................................................... 9

City of Memphis v. Winfield, 27 Tenn. (8

Hum.) 707 (Tenn. 1848) ........................................... 8

Collins v. Harker Heights, 503 U.S. 115

(1992) .................................................................... 5, 6

Conn v. Gabbert, 526 U.S. 286 (1999) ................. 10, 11

Corfield v. Coryell, 6 F. Cas. 546 (C.C. E.D.

Penn. 1823) ............................................................... 8

Craigmiles v. Giles, 312 F.3d 220 (6th Cir.

2002) ....................................................................... 10

Dent v. West Virginia, 129 U.S. 114 (1889) .......... 9, 11

Lochner v. New York, 198 U.S. 45 (1905) ................. 10

Loving v. Virginia, 388 U.S. 1 (1967) ........................ 13

Merrifield v. Lockyer, 547 F.3d 978 (9th Cir.

2008) ....................................................................... 10

Moore v. East Cleveland, 431 U.S. 494 (1977) ............ 6

Palko v. Connecticut 302 U.S. 319 (1937) ................... 6

Poe v. Ullman, 367 U.S. 497 (1961) ...................... 6, 14

Reno v. Flores, 507 U.S. 292 (1993)............................. 5

Saint Joseph Abbey v. Castille, 712 F.3d 215

(5th Cir. 2013) ........................................................ 10

iv

Washington v. Glucksberg, 521 U.S. 702

(1997) ................................................................ 3, 5, 6

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................... 9

Other Authorities

CONG. GLOBE, 42d Cong., 1st Sess. (1871) ................ 13

EDWARD COKE, THE SELECTED WRITINGS AND

SPEECHES OF SIR EDWARD COKE (Steve

Sheppard ed., 2003) ................................................. 7

Evan Bernick, Towards a Consistent

Economic Liberty Jurisprudence, 23 GEO.

MASON. L. REV. 479 (2019) ................................. 9, 12

Magna Carta, U.K. NAT’L ARCHIVES ........................... 7

Marc P. Florman, The Harmless Pursuit of

Happiness: Why Rational Basis with Bite

Review Makes Sense for Challenges to

Occupational Licenses, 58 LOY. L. REV. 721

(2012) ...................................................................... 11

RANDY E. BARNETT & EVAN D. BERNICK, THE

ORIGINAL MEANING OF THE FOURTEENTH

AMENDMENT: ITS LETTER & SPIRIT (2021) ............ 3, 4

Robert G. McCloskey, Economic Due Process

and the Supreme Court: An Exhumation

and Reburial, 1962 SUP. CT. REV. 34 (1962) ......... 12

THE DECLARATION OF INDEPENDENCE (U.S.

1776) ......................................................................... 8

The Virginia Declaration of Rights, NAT’L

ARCHIVES .................................................................. 8

Timothy Sandefur, The Right to Earn a

Living, 6 CHAP. L. REV. 207 (2003) ................ 7, 9, 13

v

WILLIAM BLACKSTONE, COMMENTARIES ................. 7, 11

1

INTEREST OF AMICUS CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Robert A.

Levy Center for Constitutional Studies was established in 1989 to help restore the principles of limited

constitutional government that are the foundation of

liberty. Toward those ends, Cato publishes books and

studies, conducts conferences, produces the annual

Cato Supreme Court Review, and files amicus briefs.

The Cato Institute’s scholars have published extensive research on regulation and constitutional law.

This case interests the Cato Institute because it concerns the legality of a contested regulation that implicates a fundamental right.

1 Rule 37 statement: All parties were timely notified before the

filing of this brief. No part of this brief was authored by any

party’s counsel, and no person or entity other than amicus funded

its preparation or submission.

2

SUMMARY OF ARGUMENT

For over a century, American farmers have raised

deer. Deer farmers help maximize the value of marginally productive land and provide consumers with a

high-quality source of lean protein (venison) and other

natural products like pelts and antlers. However, concerns about the spread of cervine disease led Minnesota to stop issuing new deer farming licenses. Furthermore, existing licenses can only be transferred

once—to immediate family members—with the permission of Minnesota’s Board of Animal Health.

The Minnesota Deer Farmers Association sued, arguing that these licensing restrictions violated the fundamental right to pursue a profession. The district

court dismissed the action, finding that it failed to

state a claim. The Eighth Circuit Court of Appeals affirmed the lower court, finding that Minnesota’s licensing scheme did not intrude on a fundamental

right.

However, the Eighth Circuit’s understanding of the

suit was too narrow. That court asked: Does Minnesota’s statutory scheme intrude upon the fundamental

right to farm white-tailed deer? But that is the wrong

question. The issue this action raises is: Does Minnesota’s statutory scheme intrude upon the fundamental

right to pursue a chosen profession?

A right is fundamental if it is “deeply rooted in the

nation’s history” and “implicit in the concept of ordered

liberty.” Protecting the rights of merchants and traders to engage in their occupations predates Magna

Carta. Work is fundamental to American life and liberty.

3

This case is an ideal vehicle to correct a persistent

misunderstanding of this fundamental right. The fundamental right to pursue a lawful profession is central

to the American tradition of ordered liberty, and the

Court should grant certiorari to clarify the nature of

this right. For almost a thousand years, Anglo-American jurists have recognized this right. This Court has

regularly recognized it. The Court should restore the

right to pursue one’s chosen profession to its proper

status as a fundamental right.

ARGUMENT

I.

THE LOWER COURT MISCHARACTERIZED

THE NATURE OF THE FUNDAMENTAL

RIGHT AT ISSUE IN THIS CASE.

A court that analyzes a fundamental right must

supply a “‘careful description’ of the asserted fundamental liberty interest.” Washington v. Glucksberg,

521 U.S. 702, 721 (1997).2 That analysis rests on a fulcrum of constitutional rights and liberty interests; if

the right is defined too broadly or too narrowly, then

either there will be more than enough evidence or no

evidence at all to support the finding of a fundamental

right.

The Eighth Circuit Court of Appeals determined

that the right at issue in this case was the

2 Although the Glucksberg test is not identical with the ideal test

for applying the original meaning of the Fourteenth Amendment,

it is currently the binding precedent of this Court and it is close

enough to the correct approach that the differences have no effect

in this case. See RANDY E. BARNETT & EVAN D. BERNICK, THE

ORIGINAL MEANING OF THE FOURTEENTH AMENDMENT: ITS LETTER

& SPIRIT 257 (2021) (explaining how the ideal test for determining

which rights are protected by the Fourteenth Amendment would

differ from Glucksberg).

4

“fundamental right to pursue their chosen profession

of white-tailed deer farming . . . .” Pet. App. 7a (emphasis added). Unsurprisingly, that court could find no evidence for the existence of such a right. Id. at 9a–10a.

But the Eighth Circuit’s finding refutes an argument that was never raised. “The argument is not that

farming is a constitutional right,” let alone the farming

of white-tailed deer. Pet. at 10; see also id. at 17. The

fundamental right that the Petitioners asserted here

is the right to pursue a profession. And when a plaintiff asserts an articulated constitutional right, it is the

job of the court to “investigat[e] whether a right with

those properties is sufficiently deeply rooted.” BARNETT & BERNICK, supra, at 237. It is not the job of the

court to rephrase and narrow the right into one that

the plaintiff never claimed.

The lower court confused an instance of the right

with the right itself. That is a mistake both of nomenclature and of analysis. Consider an analogy: there is

no particular right to freedom of speech online, nor a

particular right to bear a SIG Sauer P365 handgun,

nor a particular bar on quartering troops in a home

with central heating. As a formal matter, the Constitution expressly protects general rights: the right to

freedom of speech, the right to bear arms, and the bar

on quartering troops generally. When courts resolve

questions about a fundamental right, they must begin

by examining the right as articulated by the plaintiff

and determining whether the claimed right has been

framed accurately, neither too broadly nor too narrowly. See BARNETT & BERNICK, supra, at 237 (when

applying the “careful description” prong of the

5

Glucksberg test, “‘[c]arefully’ could be considered synonymous with ‘accurately.’”).

In this case, the Court should begin its analysis by

identifying the nature of the fundamental right at issue—the right to pursue one’s chosen profession—and

then apply the law to the concrete issue at hand. Of

course, any analysis of fundamental rights requires a

high degree of prudence and circumspection. Pet. App.

10a (quoting Glucksberg, 521 U.S. at 720) (“We have

always been reluctant to expand the concept of substantive due process”) (quotation cleaned up by Eighth

Circuit). But Petitioners did not ask the Eighth Circuit

to discover a new right where one did not previously

exist. Rather, Petitioners asked that court—and now

ask this Court—to recognize the fundamental right to

pursue one’s chosen profession. That right has deep

roots in this nation’s case law. Just as importantly,

that right is both deeply rooted in our nation’s history

and implicit in ordered liberty.

II. THE PURSUIT OF A CHOSEN PROFESSION

IS A FUNDAMENTAL RIGHT.

A. Glucksberg’s Two-Part Test Identifies a

Fundamental Right.

The Constitution prevents the government from

wrongfully exercising its powers, and the Fourteenth

Amendment’s Due Process Clause prevents that

wrongful exercise even if the procedures it rested on

were enacted fairly. Collins v. Harker Heights, 503

U.S. 115, 125 (1992). Constitutional protections are

stronger when government actions jeopardize a fundamental right. Those actions must pass strict scrutiny.

Reno v. Flores, 507 U.S. 292, 302 (1993). The Court

rarely identifies new fundamental rights. Glucksberg,

6

521 U.S. at 720 (listing fundamental rights); Collins,

503 U.S. at 125.

As Glucksberg explains, a two-part test determines

if a right is “fundamental.” After a “‘careful description’ of the asserted fundamental liberty interest,” a

right must be both “deeply rooted in this Nation’s history and tradition” and “‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice

would exist if they were sacrificed.’” Glucksberg, 521

U.S. at 721 (quoting Moore v. East Cleveland, 431 U.S.

494, 502 (1977) (plurality opinion); Palko v. Connecticut 302 U.S. 319, 325–26 (1937)).

The realm of fundamental rights is not one where

“judges have felt free to roam where unguided speculation might take them.” Poe v. Ullman, 367 U.S. 497,

542 (1961) (Harlan, J., dissenting). Rather, there are

“certain interests” that are so directly related to liberty

that they “require particularly careful scrutiny of the

state needs asserted to justify their abridgment.” Id.

at 543.

B. The Right to Pursue One’s Chosen Profession Is Deeply Rooted in the Nation’s History and Tradition.

The right to choose and pursue a profession is

deeply rooted in the Anglo-American legal tradition.

That may be an understatement: Perhaps it is more

accurate to say that the right just is part of the AngloAmerican legal tradition. Magna Carta ensured that

“all merchants may enter or leave England unharmed

and without fear, and may stay or travel within it, by

land or water, for purposes of trade, free from all

illegal exactions, in accordance with ancient and

7

lawful customs.” Magna Carta, U.K. NAT’L ARCHIVES.3

Notably, Magna Carta didn’t originate those rights;

rather, it memorialized the “ancient and lawful

customs” which long predated the royal charter. Id.

At common law, “every man might use what trade

he pleased.” 1 WILLIAM BLACKSTONE, COMMENTARIES,

*427. Sir Edward Coke, the Elizabethan champion of

the rule of law, noted that a licensure system that gave

a “grant to the Plaintiff to have the sole making of

[playing cards] is against the Common Law.” 1

EDWARD COKE, THE SELECTED WRITINGS AND

SPEECHES OF SIR EDWARD COKE 1155–56 (Steve

Sheppard ed., 2003).4 The courtroom debate during the

playing-card case was rife with references to the codes

of Emperors Justinian and Zeno. Id. at 1160–61. Coke

believed that a man’s life was his trade, because his

trade supported his life. Monopolistic regulations that

destroyed that trade thereby destroyed a life. See

Timothy Sandefur, The Right to Earn a Living, 6

CHAP. L. REV. 207, 216 (2003).

Such common law protections shaped the legal

framework of colonial America. George Mason began

the Virginia Declaration of Rights by proclaiming that

“all men are by nature equally free and independent,

and have certain inherent rights,” including “the

enjoyment of life and liberty, with the means of

acquiring and possessing property, and pursuing and

3 Available at https://bit.ly/4nDRmVO.

4 At the time, Coke was Attorney General for England and Wales

and bore the duty to bring the government’s case in defense of the

monopoly. His laudatory account of the case for the opposing

counsel’s position is therefore especially notable. “Coke, at least

formally, lost the Case, although his heart was probably not in

it.” Id. at 1146 (editor’s note).

8

obtaining happiness and safety.” The Virginia

Declaration of Rights, NAT’L ARCHIVES.5 Jefferson

echoed those sentiments when he averred that all men

have the right to “life, liberty, and the pursuit of

happiness.” THE DECLARATION OF INDEPENDENCE para.

2 (U.S. 1776).

Early American law upheld the common law right

to pursue one’s chosen profession. In Corfield v.

Coryell, Justice Bushrod Washington, riding circuit,

wrote that there were certain “fundamental

principles” that “belong, of right, to the citizens of all

free governments.” Corfield v. Coryell, 6 F. Cas. 546,

551–52 (C.C. E.D. Penn. 1823). Justice Washington’s

account shows Mason’s influence: Those principles

include “the right to acquire and possess property of

every kind, and to pursue and obtain happiness and

safety . . . .” Id. And just as Magna Carta protected

merchants’ right to travel, Justice Washington

recognized the “right of a citizen of one state to pass

through, or to reside in any other state, for purposes of

trade,

agriculture,

professional

pursuits,

or

otherwise.” Id. Protecting the right to pursue one’s

chosen profession sometimes lowered racial barriers.

In antebellum Tennessee, the state Supreme Court

struck down a curfew that targeted black laborers in

City of Memphis v. Winfield, 27 Tenn. (8 Hum.) 707

(Tenn. 1848). That court found that the law prevented

black laborers from engaging in “the most profitable

employment,” labeling the law “an attempt to impair

the liberty of a free person unnecessarily” and “to

restrain him from the exercise of his lawful pursuits.”

Id. at 709. Sandefur’s research identified roughly 60

5 Available at https://bit.ly/43dwU6K.

9

opinions between Corfield and the Slaughter-House

Cases that recognized a common law right to pursue

one’s chosen profession. Sandefur, supra, at app. A.

Even after the Slaughter-House Cases, courts

continued to recognize constitutional protections for

professional pursuits. In Dent v. West Virginia, this

Court recognized a property interest in pursuing “any

lawful calling.” 129 U.S. 114, 121 (1889). That

property interest cannot be taken away “arbitrarily.”

Id. The Court upheld the licensure scheme at issue in

Dent, but only after ensuring that there was “nothing

of an arbitrary character in the provisions of the

statute in question; it applies to all physicians, except

those who may be called for a special case from another

State; it imposes no conditions which cannot be readily

met.” Id. at 124.

In contrast, when the Court detected genuine

arbitrariness in the regulatory restrictions it

examined, such as in Yick Wo v. Hopkins, it struck

down those restrictions because they were

inappropriate for a “harmless and useful occupation.”

Evan Bernick, Towards a Consistent Economic Liberty

Jurisprudence, 23 GEO. MASON. L. REV. 479, 482 (2019)

(quoting Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886)).

The “right to follow any of the ordinary callings of

life,” of “following the pursuit which [one] prefers,” was

repeatedly recognized as one of the rights protected by

the Fourteenth Amendment. Allgeyer v. Louisiana,

165 U.S. 578, 590 (1897) (quoting Butchers’ Union Co.

v. Crescent City Co., 111 U.S. 746, 764–65 (1884)).

However, the right to choose and pursue one’s

profession is distinct from the right to contract.

Protection of the latter right famously reached its

10

high-water mark in Lochner v. New York, 198 U.S. 45

(1905), when the Court struck down legislation that

capped bakers’ daily and weekly work hours. The

Lochner era ended nearly a century ago, but that trend

in the law is distinct from the established judicial

protection of the fundamental right to pursue a

profession. It is one thing for a state to limit the types

of contracts that may be entered while pursuing one’s

possession, but it is quite another to bar someone from

pursuing that possession entirely. The law at issue in

this case is not akin to a law capping bakers’ hours; it

is akin to a hypothetical law forbidding every and any

prospective new baker from entering into the labor

market at all. That legislation would run afoul of the

general right to pursue a chosen profession—a right

that the Court has recognized and continues to

recognize.

In Conn v. Gabbert, the Court recognized that there

is “some generalized due process right to choose one’s

field of private employment,” even if it is “subject to

reasonable government regulation.” Conn v. Gabbert,

526 U.S. 286, 291–92 (1999). A multitude of modernday appellate opinions have held that various schemes

of occupational regulation serve no legitimate

government interest and thereby flunk rational basis

review. See, e.g., Saint Joseph Abbey v. Castille, 712

F.3d 215 (5th Cir. 2013); Merrifield v. Lockyer, 547

F.3d 978 (9th Cir. 2008); Craigmiles v. Giles, 312 F.3d

220 (6th Cir. 2002). Although the right to choose and

pursue an occupation is deeply rooted and ultimately

should trigger strict scrutiny, these decisions suggest

that this right persists today.

Modern law has shifted ground from Blackstone’s

rule that “every man might use what trade he

11

pleased.” 1 WILLIAM BLACKSTONE, COMMENTARIES,

*427. Nonetheless, that right—in some form—still

lives. Where does Conn’s “generalized due process

right” come from? We can trace back the chain.

Gabbert recognized the right in Dent, which itself

recognized it as a “distinguishing feature of our

republican institutions.” Dent, 129 U.S. at 121. That

distinguishing feature was recognized by the Framers

in our founding documents, who saw that it emerged

from Anglo-American common law. That legal

tradition was older than Magna Carta; it extended

back to antiquity.

The right to pursue one’s chosen profession is

deeply rooted in our legal tradition. This Court has

recognized as much in the past, and it should reaffirm

it here. Under the test this Court laid out in

Glucksberg, there is a fundamental right to pursue a

profession.

C. The Right to Choose and Pursue a Profession Is Implicit in the Concept of Ordered

Liberty.

Making choices about livelihood and pursuing one’s

chosen profession are at the core of ordered liberty.

These matters are essential elements of the pursuit of

happiness. Marc P. Florman, The Harmless Pursuit of

Happiness: Why Rational Basis with Bite Review

Makes Sense for Challenges to Occupational Licenses,

58 LOY. L. REV. 721, 741 (2012). In Gabbert, the Court

recognized that the pursuit of one’s chosen profession

has some degree of constitutional protection. Gabbert,

526 U.S. at 291–92. The connection between pursuing

a profession and liberty is long established in the law.

12

The domains of economic rights and civil rights

sometimes overlap. Many economic rights implicate

civil rights; many civil rights implicate economic

rights. And both are valuable: For instance, “most men

would probably feel that an economic right, such as

freedom of occupation, was at least as vital to them as

the right to speak their minds.” Robert G. McCloskey,

Economic Due Process and the Supreme Court: An

Exhumation and Reburial, 1962 SUP. CT. REV. 34, 46

(1962). It is unclear “why liberty of economic choice is

less indispensable to the ‘openness’ of a society than

freedom of expression.” Id. The protection of economic

rights prevents the persecution of scattered minorities

in much the same way that the protection of civil

rights does; “the scattered individuals who are denied

access to an occupation by State-enforced barriers are

about as impotent a minority as can be imagined.” Id.

at 50.

Invocations of the right to pursue one’s chosen

profession are not “just a patriotic shibboleth.”

Bernick, supra, at 498. “The right to work, [Justice

Douglas] had assumed, was the most precious liberty

that man possesses.” Barsky v. Bd. of Regents, 347 U.S.

442, 472 (1954) (Douglas, J., dissenting) After all,

Americans use a great deal of their liberty to work.

Many derive meaning and emotional fulfillment from

work. Many understand work to be “a form of selfexpression and central to their self-definition.”

Bernick, supra, at 498. Some would likely place a

higher value on the freedom to pursue a profession

than on the freedom to travel to Washington and lobby

their Member of Congress.

The Fourteenth Amendment protects economic

liberty. That Amendment provided the foundation for

13

the Civil Rights Act of 1866, which protected the

economic rights of the once-enslaved, newly freed

black citizens of the South. Sandefur, supra, at 228.

The Act protected the security of everyone’s property—

regardless of race. Id. Representative John Bingham,

one of the authors of the Fourteenth Amendment,

believed that the core of liberty included the right “to

work in an honest calling and contribute by your toil

in some sort to the support of your fellowmen.” Id. at

229 (quoting CONG. GLOBE, 42d Cong., 1st Sess. App.

86 (1871)). Our Fourteenth Amendment conception of

ordered liberty is inseparable from the right to pursue

one’s chosen profession.

This Court’s protection of ordered liberty, and of

the constitutional rights that breathe life into it, is at

the center of the American jurisprudential tradition.

The continued advancement of individual autonomy

through the protection of constitutional rights—such

as those in the First and Second Amendments—is a

fundamental implication of that tradition. This Court

is appropriately skeptical of the constitutionality of

laws that intrude on the right to speak, the right to

worship, and the right to bear arms. It should be

similarly skeptical when faced with a law that

unambiguously intrudes on the right to choose and

pursue a profession. As explained above, the freedom

to pursue one’s chosen profession is just as intrinsic a

right as any others “implicit in the concept of ordered

liberty.”

CONCLUSION

This case is not about the fundamental right to

farm white-tailed deer—any more than Loving v.

Virginia is about the fundamental right to marry

Mildred Loving. Loving v. Virginia, 388 U.S. 1 (1967)

14

(finding that arbitrary deprivation of the fundamental

right to marry was impermissible). Rather, this case is

about the fundamental right to choose and pursue a

profession. This right has deep roots in our legal

traditions. It is an essential part of our conception of

ordered liberty. Glucksberg’s logic demonstrates that

the right to pursue one’s chosen profession is

fundamental, and that any scheme that infringes on it

requires the application of strict scrutiny.

We are asking the Court to grant the petition for

certiorari for these reasons, and for those described by

the Minnesota Deer Farmers Association. We do not

ask the Court “to roam where unguided speculation

might take them.” Poe, 367 U.S. at 542 (Harlan, J.,

dissenting). Rather, we ask the Court to follow its own

test and respect its own precedent. The test in the

Court’s caselaw establishes the fundamental right to

pursue one’s chosen profession. The Court should

grant this petition and clarify the law by recognizing

the proper status of this fundamental right.

Respectfully submitted,

December 1, 2025

Thomas A. Berry

Counsel of Record

Dan Greenberg

Sam Rutzick

CATO INSTITUTE

1000 Massachusetts Ave., NW

Washington, DC 20001

(443) 254-6330

tberry@cato.org