Arizona case spotlights “the right to earn a living”

After more than 20 years of working as an engineer for manufacturing companies, Greg Mills wanted to work for himself. He started his own engineering consulting company to design electronic circuitry for startups and small businesses.

But after a customer complained to the state about a cost dispute, the Arizona Board of Technical Registration discovered Mills ran his company without the required engineer license. The state threatened to shut down his business if he didn’t register, while Mills contended that the registration process is illogical, expensive, and time-consuming.

Now, what started as a legal dispute between a small business owner and the state has escalated into a battle at the Arizona Supreme Court. In a supplemental brief filed with the court last week, Lawyers backing Mills argue that the state’s overbearing requirements hinder the right to earn a living. They say this right is one of the most fundamental and neglected constitutional freedoms, protecting the pursuit of economic liberty without excessive government interference.

“The right to earn a living is a basic natural right that belongs to all people,” said Timothy Sandefur, an attorney at the Goldwater Institute. “Whether that be that you go make a farm, to make the food that you need, or if it means that you get a job as a doctor, or a lawyer, or a mathematician. … This natural right was well understood by the American Founding Fathers as one of the basic rights of all mankind. 
They called it the pursuit of happiness.”

Since 2008, Mills has been the principal engineer for his company, Southwest Engineering Concepts, based in Chandler, Ariz. But in 2019, a client complained Mills had increased the cost estimate for a misting umbrella, a device meant to cool the user, from $4,000 to $4,800. The client filed his complaint with the Arizona Board of Technical Registration, which regulates several industries across the state.

As the board examined the case, it learned Mills had illegally failed to register himself and his firm to practice engineering professionally. It told Mills that he couldn’t call himself an engineer or do engineering without a license. The board attempted to resolve the matter through two consent decrees that, had Mills signed them, would have required him to take steps to register his business and himself. The board threatened Mills with hefty fines and the shutdown of his firm if he didn’t comply.

In 2019, Mills filed a lawsuit against the board, stating that he didn’t need to be a licensed engineer as roughly 80% of engineers nationwide are unlicensed. When Mills worked at manufacturers, he wasn’t required to have an engineering license, he said. He argued his work doesn’t pose a threat to public safety or deal with projects that legally require a “professional engineer,” like bridges or buildings. He focuses on electrical and mechanical engineering services, such as making medical devices, sensors that help people improve their basketball throws, or aerospace components. His products are certified by third-party testers to meet national standards.

Mills argued that the board’s requirements were unreasonable government interference that infringed on several rights under the Arizona Constitution. He said that the regulations gave Arizona a monopoly over the use of the term “engineer,” which hurts speech rights. He also said the regulations impede his right to earn a living. (The right to earn a living is a concept distinct from the “right to work,” a movement to limit the power of labor unions over workers.)

After a battle in lower courts on whether Mills had a right to sue or not, a superior court dismissed his case in 2023, finding he did not have adequate constitutional infringement claims. It ruled that the state’s regulations were narrowly tailored rules that aimed to protect public safety.

The superior court sided with the Arizona board, which had argued that its regulations were aimed at maintaining conduct and not speech. The state sought to protect the public from being misled by Mills’ qualifications, the state said in its court arguments. It added that principal engineers, as Mills calls himself, are required to be registered across the state. As far as Mills’ right to earn a living, the state said it isn’t barring him from being an engineer—he just needs to register to be one.

I reached out to the board for comment, but it did not respond prior to publication.

The Arizona Court of Appeals upheld the ruling against Mills in 2024. Mills then appealed to the state’s highest court. In a friend-of-the-court brief from the Goldwater Institute, attorneys emphasized the importance of the high court protecting Mills’ right to earn a living.

Economic liberty is a fundamental right that’s older than the U.S. Constitution, the brief argues. By the time the Constitution was written, it was accepted that all individuals have the right to make an honest living without unnecessary licensing restrictions, the brief says, adding that licenses should be required only to promote public safety.

In making its case, the brief points to the concepts of the American dream and the “pursuit of happiness” described in the Declaration of Independence. “Decisions relating to marriage, procreation, and child-rearing are central to personal dignity and autonomy—part of how all people define their own concept of existence,” the brief argues. “And so is the right to make economic decisions, including what career to pursue, whether to work for oneself or others, and how to direct one’s creative energies to provide for oneself and one’s family.”

Courts typically downplay the importance of economic liberty, said Sandefur, the Goldwater Institute attorney. He said Mills’ case urges the Arizona Supreme Court to protect economic liberty just as much as it protects speech or religious rights.

“The government does not have a right to go in there and tell people who can and cannot pursue different businesses and trades,” Sandefur said. “They’re not protecting public safety. But what they’re really doing is protecting people who already have licenses against competition from other people.”

One hundred years ago, the U.S. Supreme Court did protect the right to earn a living, Sandefur said, but several 1930s rulings stripped protections for economic liberty.

More courts and states across the country are starting to uphold this right, he noted. In 2014, the Texas Supreme Court found that cosmetology licensing requirements for eyebrow threaders were overly burdensome.

In 2024, Louisiana passed a law eliminating licensing requirements for florists. The state reportedly had required florists to pass a written exam before selling arrangements, but the state updated its law after civil rights attorneys questioned how the testing and licensing requirements upheld economic liberty.

Oral arguments for Mills’ case are set for this March.

Sandefur noted that a win for Mills would be a win for anyone pursuing entrepreneurship in Arizona. “In order to get a license [now], it costs a lot of money, and it takes a lot of time,” he said. “The result is to disproportionately exclude people who are the small guy—they are the people who don’t know anybody, or don’t have political favors.”