Licensing requirements. Justin pearson talks about the studies at a Federalist Society event in montgomery, alabama. Theood morning, welcome to montgomery Federalist Society. I am president of the montgomery chapter and associate dean at Faulkner University school of law. Have you hereo today for our topic on occupational licensure. This is a topic that i am very interested in. Occupational licensing law established governmentbacked barriers of entry into based onns and fields the allegations that the general safety and welfare of the community is served and protected by them. The reality is that lobbyists and other connected Interest Groups favor occupational licensing for its anticompetitive effects. In fees and restrictions licensure prevent arch tort vent four return officially providing consumers with better goods and services. Of these laws. Proportionally on minority communities who would benefit regulations ie would go decisive Government Entity expensive Economic Freedom and mobility. Center for political economy at the university did a study, it was published in 20, called the cost of occupational licensing in alabama. We have to answer mobile force who is the executive Director Director of the Johnson Center economies, this audy concludes that we have problem with occupational licensure in alabama. Im going to read from it briefly, alabama licenses a total of 151 occupations covering over 432,000 alabama workers, which are present for 21 of the states labor force. Total initiale cost of occupational licensure, excluding educational costs, to be 122 milliondollar spirit an annual license renewal cost, the cost to both workers and consumers who often pay for the increase in prices, 45 million total. To thells in comparison total initial education costs which we estimate to be 65 million dollars, and the million of243 continued education costs for license workers in alabama. What are some of these processions there licensing . It could be a dietitian, you have to go through these fees to be a dietitian, a midwife, a pro interiorocksmith, designer, mason contractor, auctioneer to be an auctioneer you have to be licensed in our state. Have justin to pearson from the institute from justice here today to talk about occupational licensure. The title of the talk is wrapped occupationalhow licensing law stifles the american dream. Justin is the Florida Office managing attorney at the institute for justice and also oversees their National Economic liberty efforts. Tohas devoted his career defending the Constitutional Rights of Small Business owners, and he has victoriously argued on their behalf at trial and Appellate Courts. Include winning several types of constitutional challenges that had never previously prevailed anywhere. As a result, justin was honored by the daily Business Review and lot. Com and 2017 for being named one of south florida process one of south floridas most effective lawyers. He helps allies and stop draft will form bills that have become law. He is frequently invited by chairs to testify on these topics he has done so over a dozen times with occupational licensing reform being a top topic. He received his law degree with honors from the university of miami. Ij, he is on the committee for the Federalist Society. The James Madison institutes board of members. He is a member of the enterprise leadership program. He had dinner last night with law students and was very helpful in helping them think through their career plans, their studies, their curriculum, and he is also generous to becoming his time here to us. He assured me in welcoming justin pierce. [applause] thank you. Thank you alan for that generous introduction. Thank you all for having me. It is an honor to be here. I have one of the greatest jobs in the world. I wake up everyday and i sue the government. It is a lot of fun. Our highly recommended. I am a constitutional lawyer for Public Interest law firm. What that means is i never sue for money, and i never charge my clients anything. My salary and costs are paid for by donors. Instead, i go across the nation representing Small Business owners and aspiring entrepreneurs in pro bono cases where represent them free of charge and ask judges to throughout unconstitutional law. Something i love doing. It is tied in with the whole reason i went to law school. My mom is a Business Owner in florida. I went to law school because i wanted to represent Small Business owners. I dream is to have my own law firm. I havent been able to do that. R had been able to do that, my full client was my mom. My problem was my clients could not afford to pay me to follow big constitutional challenges, so i started doing pro bono work for now good. Salary to do the type of thing i used to do for fun for pro bono work. Fortunate that i have been able to devote my career to representing Small Business owners like my mom. There is no better place to do that then the institute for justice. Ijs donations largest libertarian law firm. It means that vs we are philosophically libertarian. For present clients from all different backgrounds. We see republicans just about as much as democrats. It turns out violating the constitution is a bipartisan endeavor. Roeare in phil constitutional restraints on government. Ij is the largest form of its type in the nation. Will up to over 130 employees spread out among seven offices. One reason why ij has become so large is that ij has been tremendously successful. In january, we will be arguing our eighth United StatesSupreme Court case. In the previous seven, we have won six. Overall, we win 70 of our cases although we typically seek out cases people say cant be won. One reason we are to be so successful is because we are not trying to cover alfieri of constitutional law. We focus on four key areas. Property rights, educational choice, freespeech and economic liberty. Alone who to talk about America Economic liberty. When i say economic liberty are to the Natural Light to pursue an honest living. That means here in the u. S. Committee should be free to a means to support yourself in whatever way is best for you and if the government wants to interfere with that they have to have a good reason. It doesnt mean they cant regulate you, they just have to have a good reason. It cant just be that they like your competitor more than you. Era of economic liberty, there is no topic that has a larger impact than the topic i am focused on today. Occupational licensing. If you want to bother people impacted by minimumwage law and union dues, and any other issue you can think of, and combined them it is less than the number of people who are currently affected by occupational licensing laws. In the 1950s, only one in 20 americans. Required to get an occupational toense, or a permission some work. The numbers now up to one in four. A tools supposed to be of last resort. It was supposed to be a thing that legislatures enacted when there was no other way to achieve the desired goal. Now it is the tool of first resort. When people hear about these three tend to think about doctors and lawyers but no, when your state has hundreds of licenses, every state does. The typical license is not for a doctor or lawyer, it is for a timekeeper or dance instructor walks near or shampoo work. Real licenses that exist. Of, we see an outbreak legislators wanting to license music therapy, which is when someone volunteers their time to play music tickets. It is yours. It has gotten so out of control that were seeing these really interesting coalitions come together to push back. I dont know how many things the trump and Obama Administrations agree on. I dont think it is a very long list. I know for things they agree on i know four things they agree on and they all have to do with occupational licensing. I put together a list of what might possibly be an exhaustive list of everything that President Trump and president obama agree with, and they all have to do with occupational licensing. If you look at think tanks from the right, left, and center, we all agree that these are undisputed facts. The first fact is that occupational licensing kills 2. 80 5 million american jobs every year. 21,000 jobs killed every year because of licensing laws. Here in alabama. You dont need corporate welfare, you dont need all these handouts to create jobs. Just through modest reform of licensing laws, you could create thousands of jobs overnight. At i. J. Weve had tremendous success convincing states to repeal licenses for africanamerican hair braiders. Warp to the point where a majority of states do not require a cosmetology license to braid hair. One of those Success Stories was in mississippi. After we convinced mississippi to repeal it hair braiding license, 3000 jobs were created in one state from not every repealing one license. License will create 3000 jobs if you repeal it, but you can create thousands of jobs and this is undisputed. Fact number two that is undisputed, occupational licensing laws cause American Consumers to be overcharged by 203 billion every year. These laws tend to hurt people who can least afford it. For example, if you are a wealthy individual and you have to pay a couple of extra bucks hair cut, that is not going to hurt you. But if you are from a disadvantaged background and everything you buy costs extra, you might have to make some tough choices that you otherwise would not have to make. Occupational licensing laws increase recidivism, and of course this makes sense, but it shocked my friends on the left. I remember when some scholars in some scholars did these studies were in california newspapers talking about how californias occupational licensing laws were increasing recidivism, it blew my friends minds. How can it be that progressive policies are increasing recidivism . But of course, when you make more thinks a crime, you end up with more criminals. You are taking away someones ability to earn a nice living, they are more likely to turn to some other way to support themselves. Fact number four, and this is really the kicker, sure they lead to recidivism, but certainly they must protect health and safety, right . No, they dont. This was discussed in the Obama Administration and other places. You look at all the studies and all the research that was done, they agree that for the overwhelming majority of licenses, there is no positive impact on health, safety, or welfare. So it is all harm and no benefit. Its all bad and no good. Its a nationwide problem. We have these absurd licenses that should not exist in every state. Alabama, youre basically in the middle of the pack. My firm will flow to states and my firm worked out all 50 states and in terms of the burden created by licensing laws and how many licenses you have, you are the 25th best or 26 worst, so right there in the middle of the pack. You have a license for shampoo. When someone is trying to start up and get a job for the first time and start their way up the economic ladder, you dont want to impose extra fees on them. You have the auctioneering license. Our u. S. States have zero license for auctioneers. It should not exist. In states that dont have that license, there are no problems being caused by the lack of an auctioneers license. Its one of the most difficult licenses to get. It is more difficult to get a license to be an auctioneer than to become an emergency medical technician. And its not that the regulations for emts are not strict enough, they are. Its that the license has no correlation at all with health and safety. Although with lactase who has the more powerful special interest group. It is not tied into protecting the public. When you hear about the stories and you see all the harm being done, its easy to laugh at these silly laws that exist, like license for timekeepers and people who want to play music for kids in hospitals. Also, you need to remember that when youre talking about these laws being enforced, youre talking about a situation where if someone violates that line of times, Police Officers are going to arrest them. That is precisely what happens with these licensing laws. I have spoken to people who have been arrested and prosecuted for the crime of braiding hair. In hernando floor, not too far from our lives you know, florida swat teams, full swat teams rated barbershops on the suspicion of unlicensed barbering. This is what happens when you have these laws. Unfortunately, sometimes things go far astray. I just want to give you an example. As i mentioned before, people have been arrested for the crime of braiding hair. An individual in texas is a hair braid her and she was literally arrested for braiding hair about without a license. When i say arrested, i mean arrested. Officers with guns and badges showed up and put her in handcuffs and took her to jail and booked her for the crime of braiding hair. She was able to fight back and eventually get the law changed. But then she got in trouble again because texas law prevented her from teaching anyone how to braid hair. If they wanted to go and learn from her, they couldnt because it was a crime for her to teach them. At that point, thats when i. J. Got involved and filed a lawsuit and eventually prevailed to rule the law in texas unconstitutional. I would like to show you a video, quickly because it is powerful to see. These are causing real people to go to jail. [video clip] in 1997, isis was arrested crime inraiding with a texas unless you have a license. Licensing law rules, and although she won the right to braid, texas did not back down completely. Instead of passing laws that hoursense, it wedged a 35 license for braiding into the existing statute. Now, isis is fighting for the right to teach the next generation. [indiscernible] isis can only teach the 35 hour course at an existing barber school. Otherwise, she has to build her own school and take expensive and pointless barber classes. The bottom line is texas has no problem with isis teaching, they have a problem with working for herself. Isis musternment says run this into a 2000 squarefoot Barber College and she has to install things that have nothing to do with braiding like five wash stations she will never use. She also needs uses things like shorthaired manikins and barbering textbooks. Plus, she has to go back to school for 750 hours of classes. Breeders are not barbers. Braiding instructors should not be forced to build mobile schools. That is why she is fighting for her rights again. She is teaming up with the institute for justice to file a lawsuit. The lawsuit means for me economic liberty. It is important that we change the law so that nobody else can be treated fairly. Helpvictory for isis will breeders and entrepreneurs across texas and beyond. To half. S important this is our new civil rights movement. We won that case, isis is doing well. Shes teaching people how to braid hair and earn an honest living. It boggles my mind that she had sheo arrested that had to get arrested enter to draw first. That is not the way these things should work. As i mentioned before, areas for trump and obama agreed. Other groups pushing for form from all across the spectrum. It is actually far more difficult than you would think. We get had some success, rid of a license here or there and reduce one in another place, but you appeal two or three, that is nice, but friend a state has 150, 200 or 300, it is a drop in the bucket. What i would like to do now is talk about two things. Im going to talk about the challenges we face in trying to appeal these licenses that should not exist at all. Second, i am going to talk about the challenges we face when we file lawsuits. First, in terms of trying to get rough form past as i mentioned, it is difficult, the reason it is difficult is because of a phenomenon identified by public choice economists. Here the public trust economics . Echoblic choice economics you have, maybe you havent. , it is often as Political Science without the romance. Instead of Political Science which focuses on rhetoric and philosophy and why politicians say they are doing something, public choice economics focuses actuallyey do it they do and why voters vote the way they do. In these studies, public choice economists constantly come across the problem of concentrated benefits and dispersed costs. What that means is when you have a program or policy that is ,armful to society as a whole if that cost is spread out among all society but the smaller benefit is concentrated in the hands of a few people, it becomes almost impossible to repeal these laws. I see this play out firsthand. We will have a good bill that gets passed by a wellmeaning legislator who realizes these laws need to be repealed. It will go through the committee process. At that point, what will happen is legislators who campaigned on deregulation and helping out Small Business owners will try to water down the bill. The way they do this is almost always the same. As it is being heard by committee, a proderegulation legislator will say, i need you to amend this bill. I am a fan of deregulation. I am a fan of small is this owners. Rush hour no fan of Small Business owners, but there are a lot of people from this particular occupation in my district. I need you to amend this bill and take out the reform for that one license. If you do that, i will happily support this good bill. They do it. A legislator who ran on deregulation says the same thing. Saying, you know i love deregulation but we need to get rid of this. By the time it makes it out of committee, there is nothing left. It is incredibly frustrating. It is so frustrating, and fact, it makes you start to wonder whether you even have a right to economic liberty. Legislatures certainly dont act like you do. You do have a right, or at least you are supposed to. What i would like to do is talk about vindicating that right. Challenging these in court. Often times, these challenges are brought under state constitutional provisions. The state constitutions were already in existence when the constitution was ratified. The understanding that the state constitution already exist and it was state constitutions that were supposed to protect economic liberty. In fact, if you have not done so, i highly recommend that you read the declaration of rights. They tend to be fantastic, all sorts of wonderful language about protecting natural rights. Alabama, a version talking about how the only legitimate purpose for government is to protect life, liberty, and property. You have these wonderful protections in state constitutions that were supposed to protect economic liberty. And that, in fact, the framers of the u. S. Constitution understood were already protecting economic liberty. So, what happened . It turnedonstruction, out that those protections were not doing their job or more specifically, the elected state judges were not always doing what they were supposed to be doing in terms of ruling in favor of people whose rights were being violated. Reforms, three types of constitutional abuses you tended to see. The former slaves and their white allies, they would have the right to bear arms taken away, the right to vote taken away, and the right to be selfsufficient taken away. You hear these Horror Stories of people and forced to go back and work for their former slave owners because of occupational laws preventing them from being able to be selfsufficient. The result was the 14th amendment. Under the original public meaning of the 14th amendment, those were the big three things that were supposed to be protected. Youre right to bear arms, your right to vote, and youre right to earn a living. So what happened . We have independent judges, people who should be willing to stand up for what is right, even when it is unpopular, who recognize that the most important time to stand up for constitutional right is what is unpopular to do so. Certainly, that will protect aspiring a jupiter aspiring entrepreneurs. It makes me think of what the founders said when they were drafting the constitution. Thomas jefferson famously warned that the National Progress of things is for liberty to yield a government to gain ground. The framers were not particularly scared of the fact that government always likes to grow. They knew they needed government for some things. Whenever you have some level of government, it is always going to want to expand power. The framers did everything they could, they brainstormed everything they could a gust to keep government from growing beyond the purposes for which it was created. There are many ways they did this but at the end of the day, one reason they wanted to do that was through an independent judiciary. Hopefully, some of you have read federalist 78, it talks about how constitutions represent the direct will of the people, the will of the peoples representatives. Anytime a conflicts with the direct will of the people, the direct will of the people needs to prevail. It is the duty of the judge to rule that law unconstitutional. I recommend that you read it. It doesnt mean that judges get to exercise at will, they dont get to decide what policies they like or dont like, but their job is to keep government within its lane. Personally, my favorite quote on that subject was something said by James Madison when he was presenting the draft of the bill of rights to congress. James madison said that the independent federal judiciary would use that bill of rights along with the rest of the constitution to become an impenetrable bulwark against every assumption of power in the legislative or executive. On the one hand, you have this government that constantly wants to take over, that wants to do more than what we told them it is allowed to do. On the other hand, you have this impenetrable bulwark that will keep the legislative and executive from expanding. Sounds wonderful. But what is the problem . The problem is that judges are not impenetrable bulwarks. They are people, they are human beings. They tend to be smart, hardworking, wonderful people. I hold them in high regard, but they are people. Sometimes, they make mistakes. Sometime, the government slips one by the goalie. That is the story of economic liberty under the 14th amendment. Those of you who have been the law school below that shortly after the amendment was ratified, the privileges or immunities clause was eviscerated in the slaughterhouse cases. Scholars from across the political spectrum agree that the case was wrongly decided, but nonetheless, here we are, it still remains precedent. It does not provide a lot of help, certainly not what it was supposed to provide. You still have things like due , which, equal protection can be used. But the problem had a big fight between fdr and the courts. Whether it was because of that or for other reasons, the Supreme Court decided that there were some rights in the constitution, some parts of the constitution that the Supreme Court no longer cared about. There were some parts they did care about, but things like Property Rights and economic liberty, he did not care about. The parts that it did care about, they would still receive meaningful, engaged, judicial review, which we now call church scrutiny. But the part they no longer cared about would receive the rational basis test. Matter,at, fax do not evidence really matters. That test is designed to make sure the government almost always wins and what the is that it is, the job of government lawyers and judges to try to make up hypothetical rationale, even when the law was passed for legitimate purposes, to try to see how creative they could be to come up with alternative rationales to be used to uphold the law. It is the job of the person challenging the law to provide evidence to negate every single one of these conceivable alternative rationales. It is a test to make sure the government almost always wins. That is the test that governs most of the cases. It was so bad that it became so it was down that when formed, people told the founders not to waste time bringing rational basis challenges. No one had won one since the new deal. So dont waste donor money. You are not going to win. Realized theres was a way they could win. They realized the Supreme Court had not said you no longer have a right to economic liberty were robbery rights, the Supreme Court had said that it was governed by a different test. And as long as there is a text for those rights, surely there is a law that must fail that test. Around and brought challenges on behalf of aspiring entrepreneurs under the rational basis test. Obviously, it was hard. When they walked into court, the government lawyer would say was in, there is no rational basis test, no real judging, new search going on here. Dust off the old rubberstamp, government always wins. But the government was so out of control and is still so out of some of these regulations and some of these enforcements were so ridiculous that every now and then, ij would win. And every now and then when they would win, it would become a little bit easier to bring the next challenge. I walk intohen court on behalf of a Small Business owner, the government was a judge, rational basis test. The government is supposed to win. Of course, im always honest with the judge and my colleagues are always honest with the judges that the test is deferential. But now we have a couple dozen cases where aspiring a jupiters have aspiring entrepreneurs have won, there is some level of real judging involved and once we get to that point, we got a good shot as the government abuse is so ridiculously out of control. And so, what i would like to leave you with, i would like to talk about the three types of cases i bring. I bring state constitutional challenges to occupational licenses, and when i dont have anything else to rely on, i bring federal, rational basis challenges. First, for First Amendment challenges, the reason im bringing First Amendment challenges is because of the First Amendment, it is one of the parts that Supreme Court still cares about. It gets strict scrutiny which is way better than the rational basis test. That is not the only way we win economic liberty challenges under the federal constitution, two of our they were on behalf of Business Owners in the commonwealth is the Government Congress clause was something Supreme Court still appeared about. That willr these allow us to bring a federal constitutional challenge without having to litigate the rational basis test. Usually, the First Amendment challenge. Three cases getting licensing laws for tour guides ,truck down in washington, d. C. Charleston, south carolina, and savannah, georgia. Savannah was my favorite because our client give those stores where he basically told ghost stories and the government said he should have to take a test and jump through hoops before he could tell people go stories. I would like to see what tests they could come up with that would test his ability to tell accurate go stories, but that is what the government tried to argue. The First Amendment, our client is telling ghost stories today. Anyone who wants to listen, god bless them. To do is talkike to you about a case that is pending by the 11th circuit right now, and that is a case from the Florida Panhandle representing our client from the Fort Walton Beach area indicates that was brought in pensacola. Heather did not grow up in florida. She has lived a bunch of places and her husband is in the air force, so she travels around a lot. What heather does to make a little extra money is diet coaching. She does not give very complicated vice. Anyone who works out knows that you tend to do better when you have someone giving you on schedule and preventing you from getting lazy. Basically, she tells people to keep a food journal. She checks in with them every week, she reminds them to read their vegetables, things like that. Before living in florida, she lived in california. Anytime you have a regulation that does not exist in california, youre doing something wrong. That is a sad state of affairs in my home state of florida. All, she moves to the Florida Panhandle when her husband is relocated to a Different Military base. She opens up her business not realizing there could be any problems. In response, the state of florida in its infinite wisdom conducts an undercover sting that she to confirm was reminding people to eat their veggies, which honestly, she says on her website, so they could have just called her up. They believed that they had to have this undercover sting operation to confirm this fact that was not in dispute. After the conclusion of their investigation which did not involve anything she was thatsting, they determined she was telling people to weep their vegetables, which violated floridas license for nutritionists. Thankfully, was able to find the website and contact us. And it is a lawsuit First Amendment case. It is a case where she, thankfully, because her work involves speech, she actually gives meaningful review. Its also a case where its really important that we win because she is in a particularly tough situation when it comes to licensing laws. By the time she were to jump through all the hoops, shes got to move again. All she does is go back to square one every time she moves. Thankfully, most states dont even have a license. Thatmation goes to restate has a license, she cant pass those requirements and time. We bring a case to the district of florida, and we lost because there is a controlling precedent in the 11th circuit that we believe is no longer a good precedent but the district judge pointed out that she could not really be the judge to overturn it. What i would like to do is show you have is video. To show you that as we speak, there are cases going on where we are asserting First Amendment challenges to licensing laws not far from here. The panhandle is not far from montgomery. The day i got cited, i was blindsided. I could not believe that this was my life, i could not believe this was happening to me. To have the carpet pulled from under my feet was just devastating. And i am aheather Certified Holistic Health expert. I guide people to put in healthier foods and in doing that, take away unhealthy foods. We are a military family and a few years ago we had to move to the military and we moved to florida. In california, it did not require a license for Holistic Health coaching. It never occurred to me that i would be prohibited in my career and the only thing that changed was that i moved states it state. State to state. Investigator an who served a 754 fine. I was taken aback, totally floored. I learned a registered dietitian decided to report me, that cease and desist meant that i could no longer health coach in the state of florida. That meant that a piece of my income and my career and my passion had been suddenly squelched. The penalty is if i dont cease and desist, firstdegree misdemeanor, one year in prison, and a 1000 fine for each offense. To be licensed in the state of florida, i would need a bachelors degree in health on top of the bachelors and masters degree i already have. Internship, and to pass a Board Certified exam. I cant pursue getting licensed in the state of florida because meeting the requirements are just too lengthy and to financially burdensome for a military family. We may only live in florida another two years. What i do is no different than a blogger or a book author who is able to publish freely advice about nutrition. Book, publisher tom and sell it in the state of florida with the same advice i may give to an individual, but i cant meet with that person or talk to them. A lot of my coaching coverages over the phone and skype or google hangouts. The First Amendment allows us to speak freely about nutrition whether paid or unpaid. With the institute for justice, im suing the state of florida in federal court for my First Amendment right to discuss health and nutrition with other individuals. Story, and even though we lost, i can also tell you that her story is not unique. We get calls all the time for military spouses would have moved from one state where they are allowed to do something to another state where they have to start over at square one. It is just ridiculous. It does not protect health and safety by making people jump through these hoops. But that is what happens. In heathers case, it is a First Amendment challenge, part of the constitution that receives meaningful review. She has got a good chance of winning. Those are the First Amendment challenges that we bring. The other is under state constitutions. Y but i would recommend you read your declaration of rights. Able are two ways we are to use those declarations of rights to strike down these challenges. The first is that sometimes, the state constitution will have provisions that dont exist in the federal constitution. For example, ive had tremendous success ringing antimonopoly clause challenges. You will also have provisions preventing special laws and things like that. You have to look at the respective constitution in your respective state, but pretty much every state has something that will at least allow us to make an additional argument that we would not be able to make in federal court. Even if the state does not have anything different than the federal constitution, state Supreme Courts are the courts of last resort for their respective constitutions. Even when the language is prerogativets the of the court to say we interpret our constitutional language differently and our Supreme Court disagrees with the u. S. A print court. They can never go below the federal floor set by the u. S. Constitution, but they can go above it. And that is helpful. It doesnt mean we are always going to win the. In alabama, we actually lost the case of the alabama Supreme Court. That was really a case where we were arguing that the precedent was different than the federal precedent. Unfortunately, the alabama Supreme Court disagreed and we lost that. We tend to win these cases more often than we lose and we also tend to lose them more often than we win under the federal rational basis test. Maybe someday we will open one in alabama as well. Two types of challenges that we bring. Sometimes, theres no reason to think that a state constitution will provide any more than a federal constitution. It is clear that theres not going to be any way that we can get the case into the First Amendment or another part of the federal constitution that the spring court still cares about, so we are left with nothing but the federal rational basis test. Winning a federal rational basis test is the most difficult thing to do in constitutional law. As i pointed out for the earlier half century, it never happened. You did not win one of those challenges. Them,e have been winning but it is still extremely difficult. In order to illustrate the progress weve made and how difficult it remains to win rational basis cases, id like to talk about the last three cases we brought. All three cases involved the same type of law. Three different states with the same law. It involved the sale of caskets. The law was the same. What it said is when you die, you dont have to be buried if you dont want to be and if you are buried, you dont have to be buried in a casket if you dont want to be. You can be buried in just about anything you want. If you want to be buried in a casket made of wood, you can buy just about any one you want as long as the person selling is from out of state. But if you wanted from a human being in your state, a have to be a licensed funeral director even though Funeral Directors dont build caskets here and casket builders dont direct funerals. A casket is just a wooden box. Reason these laws existed was because Funeral Directors made a tremendous amount of by jacking upus casket prices on grieving families. The first case we brought was a case in tennessee challenging the law i just described. About 20 years ago. It was a federal case, federal rational basis case. Negated every possible, conceivable rationale that the government came up with which was the job to come up with stuff even if it was totally unrelated to the law. Then the case boiled down to this is how bad the case became. It boiled down to the question of whether it was a protection for no other state under the rational basis test. That case was about whether you could actually win a rational basis challenge, and we did. The District Court said that protectionism is not a legitimate government interest. The state of tennessee appealed and we won again, same logic. We negated every rationale and protection. Tennessee did not file, so we won. That was the First Federal appellate economic Liberty National basis win in half a century. So that was great. Same law, same situation. The case boils down to whether protectionism itself was a legitimate government interest under the u. S. Constitution, and we lose. We lose in District Court, so we appeal and we lose again. Outrageousic is so that i want to pull up the quote. I want to make sure i get it absolutely right. A federal Appellate Court said in a case of holding a law against a challenge. Baseball may be the National Pastime of the citizenry, dishing out special economic benefits to certain instate industries remains a favorite pastime of the state and local governments. That is a federal court saying everything youre saying is true , yet they are corrupt, it doesnt matter. There is no real judging to be done here, go away. There is a circuit split. That should interest the Supreme Court. They dont take the case. So we get angry, we pull out all the stops. We get a ton of media attention, people asking us for help does anyone know who we represented in our louisiana i know you dont, but does anyone else know who we represented in our louisiana case . Monks. Whenever possible, represent monks. That assume we represented in louisiana. We represented the st. Joseph abby which is a monastery in louisiana and basically, these monks live by a philosophy where they dont want to rely on charity, they want to rely by working with their hands. In order to make the money they need to buy food and insurance and robes and Everything Else they need, they take wood from their property and bring it to their wood shop they have at the monastery and the build these simple caskets that they sell to make the money that they need. This angered the state of louisiana, particularly the Funeral Directors because the monks were violating the law that said only Funeral Directors could sell caskets. And so, we agree to take the case and file a challenge, and we filed it in federal court in louisiana and before i go any further, let me play you the video, the last video i played today. One of the cool things is that we have a great team of people who are not just lawyers, but video projection people, and i think they do a fantastic job. Let me play you the video about the monks that we released right before we file the lawsuit. Savvy feels of the very strongly that we have a right to an honest living through the building and selling of our caskets. But louisiana does not respect that right, so the monks have taken the state to federal court. As monks have done percent risk, the brothers of st. Joseph abby in covington, louisiana put it on the table through the labor of their own hands. The monks have been making caskets for over 100 years. People who ask for them want to simplicityat noble that our coffins express. My husband really wanted to have a simple burial. Helived life simply and wanted to have a simple, wooden coffin, and so the monks were able to provide that service for us. A crime ins louisiana to silly casket unless you are a state licensed funeral director and the government has launched proceedings to punish justin brown. Of selling an casket, which is really just a box. But they must face crippling fines and even jail. Theyve also lost an important way of supporting themselves. We are not a wealthy monastery and we need the income that st. Joseph would works could generate for the health care and the education of our own monks. The state is going after the monks because licensed Funeral Directors what the casket market to themselves. There is an unholy alliance in louisiana between government and the powerful Bureau Industry lobbies. Monks teamed up with the institute for justice and a major federal lawsuit to protect their right and the right of every american to earn an honest living, free from economic protectionism and outrageous government interference. Bureaucrats and special interests are so out of control that not even monks are safe. They are ready to go all the way to the Supreme Court if thats what it takes to restore economic liberty to a generic 200 north two entrepreneur jupiter up nor to a to entrepreneurs everywhere. The law was ridiculous. The law said that they had to install an embalming room in the monastery even though they did not want to involve anyone, and some of the monks had to graduate degrees in funeral directing even though they did not want to direct any funerals. So we bring a challenge and thankfully we won, we negated every conceivable rationale for this law, all the case boils down to is whether protectionism was a legitimate interest. The District Court agreed with us that it is not, they agree with the sixth circuit as opposed to the 10th circuit. So we go up to the 10th circuit and we went again. Thankfully the district agreed. The state of louisiana filed a Search Engine but it was denied. Filed a surreptitio but it was denied. I should point out that even though those are the only cases about selling caskets at the federal circuit courts, there have also been other cases talking about whether protectionism is a legitimate interest. Some of those involved teeth whitening, pest control, shampoo ers. The courtsthan not, are saying protectionism is not a legitimate government interest, although some are ruling the other way. And retain that happens, every time that happens, the circuit split deepens. Hopefully it will be my organization, we know this issue better than anyone. Hopefully, the Supreme Court will right way, but i cant guarantee it. The Supreme Court has not show they are very interested in this issue. We have 80 years of bad precedent. We hope that when the Supreme Court takes one of these types of cases, that they do the right thing, but we dont know for sure. In the meantime, im just fortunate that i get to spend my time going around the country at chicagoland these laws, making the world a freer place for my mom and all the other Small Business owners out there. Thank you very much. [applause] well, we have a little bit of time for questions. Do we have any questions . Have you been able to negotiate with states to limit, or are you just abolishing the regulations, or coming up with something practical but doesnt require . That is a great question. There are all sorts of different regulatory approaches other than banning people from working. Banning people from working should always be the last resort. Worried about flybynight operators where you want to make the register or have an insurance requirement. There are all sorts of things that can be done short of licensing. When we are to legislators is not to try to what down the license, but we are often open to even suggest is replacing the licenses with something that does not ban work. Fails and reducing the requirements is better than no reform at all, what were trying to do is get legislators out of the mindset that they should the banning people from working and helping them to realize that there are all sorts of other tools available in the regulatory toolkit that they could use without deregulating and industry because i know that its many legislators out. There are things you can do as a legislator that doesnt and people from working. We definitely push them in that direction. Its been many years since i looked at this issue but one category d a [inaudible] not every municipality has that approach, but a shocking number do, where basically, a municipal code will say anything that is not expressly allowed is forbidden. I think that is extremely troubling for some obvious reasons. That goes far beyond licensing concerns. That involves food truck laws and zoning laws and all sorts of things that go beyond the scope of licensing. Though, is tell you, that does exist. That approach still does exist. You dont need a state licensed to get around that. There are other ways to approach that and that is a much broader issue that licensing. Sadly, that is something that we continue to see. Obviously, as you can tell, i dont think those approaches should be taken. I know we got quite a few regulatory boards in alabama can learn about sherman antitrust problems, particularly the North Carolina dental examiners. What are your thoughts . Thank you for bringing that up. My speech about constitutional challenges and particularly challenges the specific licenses. To there are other ways challenge these provisions in court, and particularly, if you are going after the makeup of the board as opposed to license itself, that is what happened in a really helpful antitrust case. Basically, what happened a few years ago with the Supreme Court ruled correctly that when you have a government licensing board that is comprised entirely his, they actors, and should not receive the same immunity from antitrust challenges that other forms of government see. There is this thing called park immunity which says you cant for violatingment interest laws otherwise, you could see them over just about everything. So, what happened in the North Carolina case was that you had this dental board consisting entirely of dentists who, surprise, decided that no one should be allowed to get people to them on anything they even questionably be described as dentistry. That involved two whitening or the board passed the regulations thing only licensed dentist could perform to the whitening. Two whitening. They brought antitrust challenge against the North Carolina dental board saying that the community did not apply in that situation because it was not really a Government Entity, it was given the title of a Government Entity looking for members, one of them actually work at the government. It went up the Supreme Court and the Supreme Court ruled in favor. Youre goingonger, to start the season antitrust classaction challenges against some of the licensing boards, particularly the ones that have no oversight from the government and are comprised entirely of private actors and that is going to be interesting to see. Its not what i do, but it could end up being helpful. We have time for one last question. I was wondering, have you ever considered joining a consumer to your action . A texas lady says i dont want to go to relicense barber, youre interfering with my right to have my hair braided how i want and by whom i want. Have you ever considered following or joining in that way . Yes, we have. Weve done that in some of our cases. Quite a few of our cases were one of the secondary plaintiffs will be a consumer, and thats not just true for licensing cases, that is true for a lot of our economic, liberty, and respeech cases where the person wants to buy the service or the person wants to hear this age, they are being harmed, and adding them as plaintiffs is helpful to show ridiculous the government is. The government loves to get to the core talking about how they are protecting the public book we have members of the public saying you are getting in the way. Whether we have a secondary point of who is a consumer or not, i think it has to help. Like i said, we have done it and i hope we continue to do it. [applause] announcer cspan flynt campaign withcoverage continues democratic president ial candidate senator cory booker from the university of New Hampshire law school. Watch live on cspan, online at cspan. Org, or listen live on the free cspan radio app. This week, American History tv is on cspan three every day with primetime features each. Ight tonight, the forgotten battles of the civil war in the submitted anniversary of the battle of the bulge where adolf hitler launched a surprise counteroffensive against allied forces. Watch American History tv all this week and every weekend on cspan3. Kids day six of our annual office week series on washington journal where we feature