Noland v. State and the Montana PSC: Standing, LLC Injury, and Pre‑Enforcement Facial Challenges to Economic Regulation

I. Introduction

Noland v. State, 2025 MT 294, is a significant Montana Supreme Court decision at the intersection of administrative law, occupational licensing, and constitutional standing doctrine. The case arises out of Montana’s “public convenience and necessity” (PCN) regime governing Class D motor carriers—companies that haul garbage and similar materials for hire.

Parker Noland, dissatisfied with existing construction debris removal services in Flathead County, started a small hauling business through his limited liability company, PBN LLC, without realizing that this activity required a Class D motor carrier certificate from the Montana Public Service Commission (PSC). When the PSC ordered him to cease unlicensed operations, PBN applied for the certificate. The application triggered intrusive discovery demands from incumbent carriers and exposure to a PCN process that Noland viewed as anticompetitive and unconstitutional. He withdrew the application, restructured his activities to avoid the certificate requirement, and then sued for declaratory and injunctive relief.

Noland’s lawsuit, brought in his individual capacity under Montana’s Uniform Declaratory Judgments Act, challenges several PCN-related provisions of the Montana Motor Carrier Act:

§ 69‑12‑323(2)(a)(iii), (2)(b), and (3), MCA – requiring the PSC to determine whether there is a “need” for the proposed service and to consider competitive impact in light of “public convenience and necessity.”
§ 69‑12‑321(1)(a)-(c), MCA – authorizing existing Class D carriers to file protests against new applications.

He alleges that these provisions—collectively referred to as the PCN provisions—violate:

Article II, § 3 (right to pursue “life’s basic necessities”),
Article II, § 17 (due process),
Article II, § 4 (equal protection) of the Montana Constitution, and
The Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution.

Noland asserts both as‑applied and facial constitutional challenges. The District Court held that he lacked standing for an as‑applied challenge and that the statutes were not facially unconstitutional because some applicants have received certificates under the PCN regime. The Supreme Court affirms the denial of as‑applied standing, but reverses the dismissal of the facial challenge and remands for merits consideration.

The opinion, along with Justice McKinnon’s extended special concurrence, clarifies several important principles:

When injuries belong to an LLC, the individual member generally cannot claim them for as‑applied constitutional standing.
Pre‑enforcement facial challenges to economic regulations may proceed where the statute imposes a structural barrier and there is a credible threat of enforcement, even if the challenger has not reapplied.
In Montana, the injury for facial challenges can be the existence of a discriminatory or burdensome process, not just the ultimate denial of a license.

II. Summary of the Opinion

A. Issues Presented

The Court restates the issues as:

Whether Noland has standing to challenge the constitutionality of the PCN provisions of the Montana Motor Carrier law.
Whether the District Court correctly determined that Noland’s facial challenge fails because some applicants have received a Class D certificate.

B. Holdings

The Court’s core holdings are:

No standing for as‑applied challenge. The Court affirms the District Court’s conclusion that Noland lacks standing to bring an as‑applied challenge to the PCN provisions. His injuries during the original application process were suffered by his LLC, PBN, not by him personally. PBN is not a party to this action, did not exhaust its administrative remedies, and any future injury to Noland individually remains speculative.
Standing for facial challenge; reversal on summary judgment. The Court reverses the District Court’s ruling that the facial challenge fails as a matter of law. It holds that:
- Noland has standing to bring a facial challenge.
- The lower court erred in reasoning that the statutes cannot be facially unconstitutional merely because some applicants have successfully obtained certificates.
- The alleged injury lies not just in the ultimate denial of a certificate, but in the procedure itself— the need requirement and protest mechanism—which may operate as a barrier to the exercise of constitutional rights.
The Court remands for the District Court to analyze, in the first instance, whether the PCN provisions are facially unconstitutional under the asserted provisions of state and federal law.

C. Special Concurrence

Justice McKinnon (joined by Justices Gustafson and Bidegaray) agrees with the result—deny as‑applied standing, grant standing for a facial challenge, and remand—but offers a more detailed and somewhat different doctrinal framework:

She emphasizes that Montana’s standing test is anchored in the state constitution’s “past, present, or threatened injury” standard, not the three‑part federal “injury in fact, causation, redressability” formula—though federal cases may be persuasive.
She treats as‑applied and facial standing as analytically distinct and clarifies that facial challenges do not need to be tied to a specific permit or application, so long as the plaintiff’s alleged injury is more than an abstract interest in the constitutionality of a statute.
She stresses that Noland’s facial challenge targets the notice, protest, and hearing procedures themselves, which apply in every case, and not merely the requirement of obtaining a certificate.

III. Factual and Legal Background

A. The PCN Regime for Class D Motor Carriers

Montana’s Motor Carrier law requires entities that haul garbage and similar materials for hire (Class D carriers) to obtain a certificate from the PSC. The PSC evaluates applications under a “public convenience and necessity” standard, using four elements derived from § 69‑12‑323, MCA:

The applicant must show that its particular service is needed.
Existing carriers are not willing or able to meet that need.
The new entrant will not harm the incumbent to such an extent that the public interest is harmed.
The applicant is “fit” (i.e., competent and responsible) to operate.

Current certificate holders may protest new applications under § 69‑12‑321(1)(a)-(c), MCA. In practice, as the record shows, most applications in the past decade have been protested, and protests often correlate with denial or withdrawal.

B. Noland’s Experience

Noland formed PBN LLC and began hauling construction debris. After the PSC ordered PBN to cease Class D activities for lack of a certificate, PBN applied for one. Incumbent carriers promptly:

Filed protests with the PSC, and
Served discovery demands for PBN’s confidential financial and business information.

Believing the process too costly and intrusive, PBN withdrew its application. Noland then reconfigured his business to provide only services that do not require a Class D certificate. Some years later, with ongoing interest in re‑entering the market, Noland sued in his individual capacity, arguing that the PCN regime unconstitutionally bars him—and similarly situated entrepreneurs—from engaging in his chosen livelihood.

IV. Precedents and Doctrinal Foundations

A. Montana Standing Doctrine and Justiciability

The Court grounds its analysis in Montana’s constitutional limitations on judicial power. Under Article VII, § 4, district courts have jurisdiction over “all civil matters and cases at law and in equity,” language that the Court has long read as the state analogue to the federal “cases or controversies” limitation in Article III of the U.S. Constitution.

Key precedents cited include:

Plan Helena, Inc. v. Helena Reg’l Airport Auth. Bd., 2010 MT 26 – Recognizes that Montana courts, like federal courts, resolve only justiciable controversies and do not issue advisory opinions; federal justiciability doctrine is persuasive.
Heffernan v. Missoula City Council, 2011 MT 91 – Distinguishes two strands of standing: (1) a constitutional requirement of a past, present, or threatened injury to a property or civil right; and (2) prudential limits (e.g., not adjudicating generalized grievances or political questions).
Larson v. State by and through Stapleton, 2019 MT 28 – Restates standing as requiring a “direct causal connection between the alleged illegality and specific and definite harm personally suffered, or likely to be personally suffered.”
Schoof v. Nesbit, 2014 MT 6, and Bullock v. Fox, 2019 MT 50 – Elaborate prudential standing: the injury must be distinct from the public at large, and courts avoid matters more properly left to political branches.

The Court reiterates the federal triad—injury in fact, causation, redressability—via Lujan v. Defenders of Wildlife and Steel Co. v. Citizens for a Better Environment, but both the majority and the concurrence emphasize that Montana’s own test is formulated in terms of a “past, present, or threatened” injury to a property or civil right.

B. Facial vs. As‑Applied Challenges

The Court leans on Broad Reach Power, LLC v. Montana Dep’t of Public Service Regulation, 2022 MT 227, and City of Missoula v. Mountain Water Co., 2018 MT 139, for the basic framework:

Facial challenge: the challenger must show “no set of circumstances exists under which the challenged sections would be valid.” The statute is unconstitutional in all its applications.
As‑applied challenge: the statute’s application to the particular plaintiff’s facts infringes constitutional rights, even if the statute is generally valid.

In Broad Reach Power, the Court refused to entertain an as‑applied due process challenge to PSC procedures because the plaintiffs had not developed a factual record of how the PSC actually employed its statutory powers against them. That case produced the phrase that Noland’s counsel had to confront: an “as‑applied challenge in a vacuum.”

C. Pre‑Enforcement Challenges and Fear of Enforcement

The Court evaluates Noland’s claims through the lens of pre‑enforcement challenges—claims brought before the government has actually prosecuted or sanctioned the plaintiff under the challenged statute.

Two leading authorities are highlighted:

Gryczan v. State, 283 Mont. 433 (1997) – Plaintiffs challenged Montana’s criminal statute prohibiting “deviate sexual conduct” between consenting adults of the same sex. Even though no prosecutions had occurred, the Court held there was a justiciable controversy because:
- the statute remained on the books and had recently been amended,
- county attorneys retained authority to enforce it, and
- the State had not disavowed future enforcement.
Fear of prosecution that is not “imaginary or wholly speculative” is a sufficient threatened injury.
Lee v. State, 195 Mont. 1 (1981) – A motorist successfully challenged a speed limit regime as an unconstitutional delegation of legislative power in a pre‑enforcement posture. Because the speed limit was enforced statewide against all motorists, including Lee, he had standing to challenge the law’s facial validity even before being cited.

D. LLC vs Individual Standing: Sagorin

A crucial strand of the Court’s reasoning is Sagorin v. Sunrise Heating and Cooling, LLC, 2022 MT 58. There, a sole member of an LLC attempted to sue in his individual capacity over injuries suffered by the LLC, including contract claims. The Court held:

An LLC’s claims—even if it has a single member—belong to the entity, not the individual.
Assignment of the LLC’s claims to the member does not automatically confer constitutional standing.
The member must show personal injury that would be redressed by a favorable judgment.

Applying this logic, the Noland Court concludes that any concrete injury from the original PSC proceeding (discovery demands, threat of administrative hearings, possible denial) belonged to PBN LLC, which is not a party. Noland cannot leverage that corporate injury to support his own as‑applied constitutional challenge.

E. Barrier‑as‑Injury and Equal Protection: Northeast Florida Contractors

To rebut the District Court’s view that the statutes cannot be facially unconstitutional because some applications succeed, the Court invokes Northeast Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993). In that case:

Jacksonville’s ordinance reserved a percentage of city contracts for minority‑owned firms.
The Supreme Court held that the injury for equal protection purposes was “the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.”

Translating that principle, the Noland Court reasons that the constitutional injury alleged is not limited to denial of a certificate; it also encompasses the requirement that new entrants clear a PCN hurdle and submit to protests by incumbents. That process is the asserted barrier.

V. The Court’s Legal Reasoning

A. As‑Applied Challenge: No Standing

1. Pre‑enforcement posture and lack of record

Noland does not challenge how the PSC applied the PCN provisions to his prior PBN application; that application was withdrawn, and PBN is not a party. Instead, he envisions a future personal application in his own name, asserting that the PCN provisions will then be unconstitutionally applied to him. This is a pure pre‑enforcement as‑applied theory.

The Court finds this approach incompatible with Broad Reach Power: an as‑applied claim must be tied to actual facts demonstrating how the statute has been or will be used against the plaintiff. Without a concrete application and PSC action (hearings, rulings, or specific procedural abuses), the Court would be speculating about a “hypothetical state of facts” (citing In re Big Foot Dumpsters & Containers, LLC, 2022 MT 67).

Allowing an as‑applied challenge here would be equivalent to issuing an advisory opinion on how the PSC might conduct a proceeding if Noland someday applies. The Court declines to do that.

2. The LLC‑member problem

The Court’s more decisive rationale rests on Sagorin. It notes:

PBN LLC, not Noland personally, operated the business that triggered the certificate requirement and submitted the application.
The PSC’s and competitors’ conduct (including discovery demands) was directed at PBN as applicant.
PBN had the statutory right to judicial review of PSC actions, but it abandoned the process and is not a party.

Therefore, any past or imminent injury associated with the prior application process is an injury to the LLC. Noland may “feel he has a personal stake,” but for constitutional standing, that is insufficient. A favorable ruling on his as‑applied claim would not necessarily redress PBN’s injuries nor bar future PSC requirements as to PBN. The Court concludes:

“For standing purposes, he does not [personally suffer the injury]. The Commission’s and competitor’s conduct was directed toward PBN’s application.”

3. Administrative exhaustion

The Court reproaches Noland (and implicitly PBN) for bypassing the normal route of administrative exhaustion, citing Hilands Golf Club v. Ashmore, 277 Mont. 324 (1996). By withdrawing the application and declining to obtain a PSC decision, PBN forfeited the opportunity to challenge how the PCN provisions were applied in an actual contested case. Noland now attempts “an end run” around that doctrine by asking for an abstract as‑applied ruling.

4. Conclusion on as‑applied standing

Combining the absence of a concrete record (pre‑enforcement as‑applied challenge) with the LLC vs individual standing problem, the Court affirms the District Court’s denial of as‑applied standing. An as‑applied challenge must rest on actual or imminent application of the statute to the plaintiff, not merely on a desire to avoid a possible future process.

B. Facial Challenge: Standing and Error in Dismissing on the Merits

1. Injury, causation, and credible threat of enforcement

While rejecting as‑applied standing, the Court concludes that Noland has adequately alleged an injury for purposes of a facial challenge.

Key points:

Over the last decade, 17 of 24 Class D applications were protested. This history shows that incumbent carriers use the protest mechanism frequently, particularly to oppose new entrants in established markets such as Flathead County.
The PSC has shown that it responds to competitor complaints and relies on the PCN framework in evaluating applications—demonstrating a history of enforcement.
The PCN provisions apply by law to every Class D application, irrespective of whether protests are filed. The Commission “must still consider need in every application.”

The Court likens this to situations where widespread enforcement and structural features of a statute create a credible threat of enforcement. That threat is strengthened, not weakened, when private parties (here, incumbent carriers) are empowered to trigger regulatory processes (citing Susan B. Anthony List v. Driehaus, 573 U.S. 149).

Noland also alleges that, but for the PCN regime, he would re‑enter the market and seek a Class D certificate. Though this fact goes more to redressability and prudential considerations than to the merits, it supports the conclusion that the statutes directly affect his ability to pursue his chosen occupation.

2. The District Court’s error: focusing on outcomes, not the barrier

The District Court treated successful outcomes under the statute (some applications were granted certificates, including over protest) as conclusive proof that the statute is not facially unconstitutional. The Supreme Court identifies this as a conceptual mistake:

“[T]he District Court misunderstands the gravamen of Noland’s injury argument. It is not merely the ultimate denial of a permit which causes his injury, but also the procedure which requires he shows need to obtain a Class D certificate.”

Drawing on Northeast Florida Contractors, the Court explains that:

The relevant injury is the unequal treatment or undue burden imposed by the process—the requirement that new applicants demonstrate “need” and undergo protests by competitors.
Even if some applicants can and do clear that hurdle, the barrier itself may be unconstitutional if it is unjustified or discriminatory.

3. Summary judgment posture and standard of review

The appeal arrives after cross‑motions for summary judgment. There is no genuine dispute of material fact; the question is whether the defendants were entitled to judgment as a matter of law. Applying de novo review, the Court emphasizes two principles:

Evidence must be viewed in the light most favorable to the non‑moving party (here, Noland).
All reasonable inferences must be drawn in the non‑moving party’s favor.

Under that standard, the Court concludes that Noland has articulated:

A plausible injury (the PCN process as a barrier to his right to pursue a livelihood and to equal treatment),
A causal link (the barrier arises directly from the challenged statutory provisions), and
Redressability (a declaration of facial unconstitutionality would remove that barrier for him and others).

Whether Noland can ultimately meet the heavy burden of showing that there is no constitutional application of the PCN provisions is a merits question for the District Court on remand.

4. Scope of remand

The Court expressly declines to decide the merits of Noland’s constitutional claims. It notes that:

The District Court has not yet applied the relevant standards of review (e.g., strict scrutiny, intermediate scrutiny, rational basis) to the PCN scheme under Article II, §§ 3, 4, 17, or the federal Fourteenth Amendment.
The factual record, though developed in discovery, has not been assessed through the lens of whether the PCN process is narrowly tailored, reasonably related, or irrational in light of the governmental interests at stake.

On remand, the District Court must:

Determine the appropriate level of scrutiny under each claim, including whether the “right to pursue life’s basic necessities” is a fundamental right that triggers strict scrutiny of economic entry barriers;
Apply those standards to the record concerning how the PCN provisions operate in practice; and
Decide whether the PCN need and protest mechanisms are facially valid or invalid under state and federal law.

VI. The Special Concurrence: Refining Montana Standing Analysis

A. Distinguishing State from Federal Standing Doctrine

Justice McKinnon’s special concurrence is a substantial doctrinal clarification of Montana standing law:

She underscores that Montana’s constitutional standing requirement is framed as whether the plaintiff “has suffered a past, present, or threatened injury to a property or civil right,” not as a three‑element Lujan test.
Federal standing decisions are persuasive but not binding on the meaning of “cases at law and in equity” in Article VII, § 4.
Justiciability in Montana has two layers: (1) constitutional case‑or‑controversy (injury), and (2) prudential limits (e.g., distinct from generalized public grievances, separation of powers concerns).

B. As‑Applied Standing: Focus on Immediacy and Regulated Status

Justice McKinnon agrees that Noland lacks standing to bring an as‑applied pre‑enforcement challenge, but she reaches that conclusion by focusing on the immediacy of the alleged threatened injury.

Her key points:

In Gryczan, the plaintiffs were currently within the class targeted by the criminal statute and were under a constant risk of prosecution. They were already living under the cloud of enforcement.
By contrast, Noland is not presently an applicant for a Class D certificate and is not currently violating the law (he restructured his business to avoid regulated operations).
Only applicants are subject to the need requirement and protest procedures; Noland is not in that class yet. His injury thus depends on future contingencies—whether he decides to apply, whether incumbents protest, etc.

She concludes that Noland’s threatened as‑applied injury is “more imaginary and speculative” than the threat in Gryczan and thus does not satisfy Montana’s “past, present, or threatened injury” threshold for a pre‑enforcement as‑applied challenge. Importantly, she stresses that once Noland applies in his individual capacity, the analysis might change and standing might then exist.

C. Facial Standing: Detaching from Particular Permits

On the facial challenge, Justice McKinnon echoes and sharpens the majority’s reasoning:

A facial challenge contests the constitutionality of a statute based on its content and operation in every case, not the particulars of a given litigant.
Consistent with Held v. State, 2024 MT 312, plaintiffs can bring facial challenges without tying them to a specific permit or application so long as they allege a concrete infringement of their constitutional rights—not just an abstract interest in correct constitutional interpretation.
Noland meets that standard by alleging that the PCN need and protest rules categorically burden his right to pursue a livelihood and deny him equal protection; he would operate a garbage‑hauling business but for those provisions.

On prudential standing, she notes:

Noland’s interest is narrower than a generalized grievance: he represents a class of individuals who want to enter the Class D garbage hauling market and will face the PCN process upon application.
The issue is of significant public importance (access to waste disposal services and free competition) and fits within the judiciary’s role of constitutional interpretation.

Justice McKinnon also situates Noland’s facial challenge alongside Advocates for School Trust Lands v. State, 2022 MT 46, emphasizing that a plaintiff can facially challenge a statute by alleging that its operation is constitutionally infirm in every application.

VII. Impact and Significance

A. For Entrepreneurs and Occupational Licensing

Noland is notable because it:

Recognizes that economic entry barriers imposed through protest-based licensing regimes can be framed as constitutional injuries rooted in the right to pursue “life’s basic necessities,” due process, and equal protection.
Opens the door for facial challenges to occupational licensing schemes where the challenger can plausibly allege that the licensing process itself—not just discrete denials—is an unjustifiable barrier.
Reinforces that plaintiffs must carefully structure litigation: if a business operates as an LLC, the LLC typically must be the plaintiff asserting injuries from licensing processes and agency actions.

B. For Administrative Agencies and “Public Convenience and Necessity” Statutes

The decision sends a clear signal to agencies like the PSC:

PCN regimes that weigh “harm to incumbents” and “need” as gatekeeping criteria are vulnerable to constitutional attack, especially where incumbents can weaponize protest rights to stifle competition.
Even if some applications succeed, the structural features of a licensing process can be held unconstitutional. Agencies cannot rely solely on “we sometimes grant” as a shield.
On remand, the PSC’s interests (e.g., service reliability, route efficiency, environmental and safety concerns) will have to be clearly articulated and shown to justify these burdens under the appropriate level of scrutiny.

C. For Constitutional Law in Montana

Doctrinally, Noland contributes to Montana’s constitutional jurisprudence in several ways:

It reinforces the distinction between facial and as‑applied challenges and clarifies that standing analysis can—and often should—differ between the two.
It underscores that the right to pursue “life’s basic necessities” in Article II, § 3, may be a potent basis for challenging economic regulations that function primarily as protectionist barriers rather than genuine health and safety measures.
It further develops the concept that “barriers” to equal treatment—such as need and protest procedures skewed toward incumbents—can be actionable constitutional injuries independent of ultimate outcomes.

D. For Litigation Strategy

Practically, the decision offers clear lessons for future litigants:

Entity plaintiffs must sue in their own names. When the business is organized as an LLC or other entity, the entity is the proper plaintiff for as‑applied challenges to licensing and regulatory actions affecting its operations.
Pre‑enforcement facial challenges remain viable. Individuals who have not yet applied for (or who have withdrawn from) licensing processes can still mount facial challenges if they can show:
- a credible threat of enforcement, and
- a concrete plan to engage in regulated activity but for the challenged statute.
Develop a record showing the barrier effect. Data on protest frequency, withdrawal rates, denial rates, and economic impacts will be crucial on remand and in future cases to prove that a process is inherently unconstitutional.

VIII. Complex Concepts Explained in Plain Terms

A. Facial vs. As‑Applied Constitutional Challenges

An as‑applied challenge says: “This law may be okay in general, but the way it was used against me violates my rights.” It is fact‑specific and usually requires a concrete enforcement action (e.g., denial of a permit, imposition of a fine).
A facial challenge says: “This law is flawed in every case—it always violates the Constitution, no matter who it is applied to or how.” To win, you must show that there is no constitutional way to enforce the statute.

B. Pre‑Enforcement Challenge

A pre‑enforcement challenge is brought before the government has prosecuted or sanctioned the plaintiff under the law. Courts will hear such a claim only if:

The plaintiff plans to engage in conduct the law regulates, and
There is a real (not speculative) threat that the government will enforce it against them.

C. Standing

“Standing” asks: Is this person the right one to bring this lawsuit? In Montana, the core questions are:

Has the plaintiff suffered—or is he about to suffer—a concrete injury to a property or civil right?
Will a court ruling realistically help fix that injury?

Prudential standing adds: Is this the kind of dispute courts should decide, or should it be left to the political branches or the general public?

D. LLC vs. Individual Injury

An LLC is a separate legal “person.” If the LLC applies for a license, is sued, or is denied a permit, the LLC (not its owner) is the one that is legally injured. The owner cannot usually sue in his personal capacity for injuries that legally belong to the LLC, even if he owns 100% of it.

E. Public Convenience and Necessity (PCN)

A PCN standard allows a regulator to deny entry to new businesses if:

The regulator thinks the public does not “need” more providers, or
A new entrant would hurt existing providers in ways the regulator views as harmful to the public.

Critics view PCN regimes as “competitor’s vetoes,” allowing incumbents to use regulation to block new competition. Supporters argue that PCN guards against harmful duplication of services, financial instability, or inadequate services in sparsely populated areas.

IX. Conclusion

Noland v. State does not yet invalidate Montana’s PCN requirements for Class D motor carriers, but it meaningfully reshapes the terrain on which that battle will be fought. The Court:

Shuts the door on Noland’s as‑applied pre‑enforcement challenge due to the LLC‑member standing problem and the lack of a concrete record of PSC enforcement against him personally.
Opens the door to a serious facial constitutional attack on the PCN regime, recognizing that the licensing process itself can be a constitutional injury, particularly where incumbent competitors are empowered to resist new entrants.
Clarifies, especially through the special concurrence, that Montana’s standing analysis is rooted in its own constitutional text and that facial challenges can proceed without being tied to a specific permit, so long as the alleged injury is concrete and not merely abstract.

On remand, the District Court must confront foundational questions in Montana constitutional law: How far does the right to pursue “life’s basic necessities” extend into occupational freedom? When do equal protection and due process forbid economic protectionism cloaked as “public convenience and necessity”? And under what circumstances may incumbent businesses invoke the regulatory state to veto their future competitors?

Whatever the ultimate resolution of Noland’s facial challenge, the opinion already stands as an important precedent on standing, entity‑member relations, and the constitutional scrutiny of licensing regimes that empower incumbents to police entry into their own markets.