U.S. Supreme Court asked to review Massachusetts plumbing license law

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John Carbin will soon learn if the U.S. Supreme Court will consider whether he should be allowed to finish the construction of his dream retirement home in Berkshire County, which he argues would also allow the court to resolve longstanding confusion over a constitutional test.

Carbin is a federally certified aircraft mechanic and former Black Hawk crew chief who has good reason to believe that he is more than capable of installing the plumbing in his new home in the small rural town of Savoy. There’s just one problem: Massachusetts is the one state in the country where he is not allowed to do that work, unless he gets a state-issued plumbing license.

Representing himself, Carbin tried to challenge the licensing requirement in U.S. District Court and the 1st U.S. Circuit Court of Appeals but made little headway.

Back on Oct. 22, 2024, U.S. District Court Judge Mark G. Mastroianni found that Carbin’s right to perform plumbing work on his own property “is clearly not one of the fundamental rights identified in the Constitution or recognized by the Supreme Court.”

As a result, Mastroianni looked to see if the plumbing license was “rationally related to a legitimate government interest” and concluded that it was.

“As the Appeals Court of Massachusetts has recognized, regulation of ‘the installation of plumbing is rationally related’ to a ‘valid legislative interest in protecting the health and safety of the public by providing for safe plumbing,’” Mastroianni wrote, citing the 2010 case Meyer v. Town of Nantucket.

But neither Mastroianni nor the 1st Circuit even addressed the claim about the public’s health and safety, say lawyers from the Pacific Legal Foundation, who are now representing Carbin pro bono. The 1st Circuit dismissed Carbin’s appeal without even looking at his complaint, according to his petition for writ of certiorari, to which the court is due to respond by Feb. 5.

In courts across the country, there is zero consistency on the degree to which courts are probing claimed “legitimate government interests,” with the 1st Circuit lying at one end of a continuum, Carbin’s cert petition notes.

Its approach “is not merely deferential; it eliminates rational basis review as a form of judicial inquiry altogether,” the cert petition reads.

The PLF is hoping that the Supreme Court will be sufficiently intrigued by the opportunity to resolve the conflict to grant review.

“The rational basis test is one of the most applied tests in constitutional law, and here we have it in the context of something that I think is eye-catching and very commonsensical,” says PLF senior attorney Anastasia Boden. “That’s why laypeople and attorneys alike like this case, because everybody thinks that he should be able to plumb his own home.”

She adds that because the test “is applied to almost all of our rights — to all rights that are not explicitly listed in the Constitution or considered fundamental — it’s extremely important that judges get it right.”

Once Carbin reached out to ask for help with an appeal to the Supreme Court, PLF realized that he had already written impressive briefs on his own in the lower courts.

“There’s actually really deep issues of constitutional law lurking here, and that’s why we took it, because we think that some of these things that he’s fighting for are the things that I’ve been fighting for my entire career as a constitutional attorney,” Boden says.

That Mastroianni deferred entirely to the government’s mere assertion that public safety is involved is troubling, Boden suggests.

If this is so important for public safety, the court did not explain, or even engage with, the question of why every other state in the nation allows residents to do their own plumbing, Boden says.

Counterintuitively, Massachusetts allows residents to perform electrical work without a license but not plumbing.

“What’s more dangerous?” she asks rhetorically.

Even before PLF got involved, Carbin had hinted at what he thinks is really going on with Massachusetts’ licensing requirement: economic protectionism for the plumbing industry.

To illustrate his point, Carbin used the hypothetical of parties being barred from representing themselves in court as a handout to the bar.

“That would smack almost everyone with a sense of injustice and the idea that it’s a handout, and it doesn’t benefit the public at all,” Boden says.

Mastroianni also made a “significant error” by concluding that Carbin had not asserted a fundamental right merely because the right to repair one’s home is not identified in the Constitution or recognized by the Supreme Court, according to Boden.

Especially considering the Supreme Court’s 2022 abortion decision, Dobbs v. Jackson Women’s Health Org., what the judge should have done was examine whether the right Carbin was claiming “is deeply rooted in the nation’s history and tradition and essential to a free society,” Boden believes.

“I think you can go back in our country centuries, showing that the right to build your own home, to construct your own home, to do your own plumbing — even [under] Massachusetts law — is something that’s deeply entrenched in our nation’s history, so the court should have conducted that analysis,” Boden says.

At a minimum, Boden thinks Carbin’s claim should have survived a motion to dismiss.

“They didn’t even let him walk in through the courthouse doors, effectively,” she says.

The government’s “bare assertion of rationality” should not have had such a profound effect, Boden adds.

“That’s just fundamentally unfair to civil rights plaintiffs, and it’s just also not the way that these things usually work in court,” she says. “Usually, you have to afford the plaintiff’s allegations the proper level of deference and credibility. Here, the court just said, ‘We’re not even going to look at your allegations. It’s good enough that the government said that it’s in the interest of public safety.’”

The way that courts such as the 1st Circuit are currently conducting the inquiry violates due process because it effectively makes judges attorneys for the government, Boden argues.

“In many cases, they’re allowed to dream up their own rationales for the government, even if the government doesn’t put forward those rationales themselves,” Boden says.

As of Jan. 26, the defendants — the state of Massachusetts, the Board of State Examiners of Plumbers and Gas Fitters, and the town of Savoy — had not responded to the cert petition. That does not surprise Boden, given that complacency by government lawyers in rational basis cases has become the norm.

“They know that they can win without doing much,” she says.

Nonetheless, Boden says that, in her line of work, she has little choice but to remain hopeful that Carbin will be granted his day in the highest court in the land.

“Suing the government is difficult,” she says. “You’re up against a powerful behemoth with endless resources, and in many ways the playing field is tilted in the government’s favor in court. So, I’m endlessly optimistic, and I think it’s worth doing these cases, no matter the result.”