Ninth Circuit Strikes Down Pest Control Licensing Scheme:
Here's some Ninth Circuit judicial activism that many Volokh readers will like: Merrifield v. Lockyer. It's a decision by Judge O'Scannlain striking down a California pest control licensing regime, giving a victory to the Pacific Legal Foundation (and Timothy Sandefur, who argued the case).

  In 1995, California amended its licensing requirements for pest control companies. Before 1995, a license was required for all pest control. In 1995, the state eliminated the license requirement for those who do non-pesticide pest control of "bats, raccoons, skunks, and squirrels." At the same time, the state maintained the license requirement for those who do non-pesticide pest control of "mice, rats, or pigeons.” In this decision, the Ninth Circuit in a 2-1 decision invalidated the statute on the ground that there was no rational basis for distinguishing pest control for "bats, raccoons, skunks, and squirrels" from pest control of "mice, rats, or pigeons."

  I realize that many of our libertarian readers will cheer the decision — it's nicely libertarian decision. Indeed, if I were a legislator, I would vote against a licensing requirement for all non-pesticide pest control. But as a matter of existing law — boring, plain, doctrinal, what-the-books-say existing law — Judge O'Scannlain's decision seems incorrect to me. The rational basis test is very easy to meet, and it seems readily met here.

  The key reason is that the control of mice, rats, and pigeons is closely associated with the use of pesticides. In light of this close connection, the state might rationally be concerned that people would try to avoid the state licensing requirement by claiming that they do not use pesticides when they actually do. Also, the use of pesticides to control these pests is sufficiently effective that homeowners might be tricked: If a homeowner hires a pest control company to take care of a mouse problem, they're going to expect the use of pesticides, and if they don't inquire they may not realize that they're not getting them. In my view, that makes it rational to have licensing requirement for one but not the other.

  Of course, these rationales may or may not be persuasive to particular readers. As I said, I personally wouldn't vote for the limitation on the exemption; I would have exempted all non-pesticide pest control. But the issue here is constitutional law, not my personal policy views, and it seems pretty clear to me that the arguments are strong enough to get over the very low threshold of rational basis scrutiny. (Hat tip: Howard)