I will concede at the outset that regulation of a profession, any profession, in and of itself is a restraint on trade. The restraint on trade passes constitutional scrutiny because of overriding public policy concerns for the well-being of society and protection against the incompetent practice of certain professions. The practice of medicine and the law are obvious targets for regulation, as are engineering and land surveying.

Generally, only those qualified by education and experience are allowed to sit for an examination to become a licensee in a regulated profession. By this process only licensed individuals are allowed to legally practice a given profession such as land surveying. This means that others wanting to practice land surveying will be restrained from doing so. In other words, this is restraint on trade.

Restraint on trade should be targeting the unlicensed who are not qualified to practice. With the aging population problem we have in the land surveying profession, it seems inconceivable that we would want to restrain the trade of licensed land surveyors. Nevertheless, this is exactly what the National Council of Examiners for Engineering and Surveying is doing with its policies and model rules.

For example, by adding the words “expert technical testimony” to the definition of the “Practice of Surveying” in its Model Laws (adopted by many regulatory boards), NCEES is preventing otherwise qualified practitioners from crossing jurisdictional boundaries to testify in court. Under the Federal Rules of Evidence and the Daubert v. Merrell Dow[1] decision, I can testify in federal court but not in another state without a license. This is restraint on trade.

Another example (but not the last that can be made) is the requirement for an NCEES record in order to sit for a state-specific examination in another state. If I already have a license in one state, why is an NCEES record necessary to prove the requisite qualifications to sit for a state-specific examination in another state? Doesn’t an existing license count as a qualifier to sit for such an examination? If the applicant can’t pass the state-specific examination shouldn’t this be the restraint on the practice of land surveying in the new state instead of the NCEES? Why is the NCEES building roadblocks instead of bridges? Lead or get out of the way.

[1] Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct 2786 (1993).