Mendenhall well, good morning. Welcome to the montgomery federalist society. Im president of the montgomery chapter. Im excited to have you here today for our topic on occupational licensing. Occupational licensing laws establish entry into professions and fields based on the allegation that the general safety and welfare of the community is served and protected by them. The reality is that connected Interest Groups favor lobbyists and other connected Interest Groups favor occupational licensing for its anticompetitive effects. The fees and restrictions instituted by occupational licensure prevent entrepreneurial innovators, who often come from modest backgrounds and represent groups, from efficiently vulnerable groups, from efficiently providing consumers with better goods and services. The onus of these laws falls disproportionately on minority communities from the eliminate to benefit from the eliminate national elimination of burdensome regulations and the expense of Economic Freedom and mobility. The Johnson Center for political economy recently did a study that was published in 2018 called the cause of occupational cost of occupational licensing in alabama. We actually have dan sutter with us today, who is the executive director of the Johnson Center for political economy. The Study Concludes that i want to read from it just briefly. Alabama licensed 432,000 representing 21 of the states labor force. We estimate, the authors, the total initial cost of occupational licensure, excluding the educational cost, to be 122 million, and annual license renewal costs for workers and consumers who often pay for these costs in increased prices, 45 million total. This pales in comparison to the total initial education costs, which we estimate to be 65 million and the estimated 243 million annual continuing education costs for license d workers in alabama. Now, what are some of these professions that are license in alabama . You could be a dietitian, you have to go through all these midwife restrictions, a pe layer contractor, locksmith, interior designer, mason contractor, and auctioneer. To be in auctioneer, you have to be licensed in our state. I excited to have Justin Pearson am here today to talk about occupational licensure. Am excited to have him the title of his talk is wrapped in red tape stifling the american dream. He is the Florida Office managing attorney at the institute for justice. He has devoted his career to defending the Constitutional Rights of Small Business owners , and he has victoriously argued on their behalf at trial in Appellate Courts across the nation. The us includes winning several types of constitutional challenges that had never previously prevailed anywhere. As a result justin was honored , by the daily Business Review and law. Com in 2017 for being named one of south floridas most effective lawyers. Performs a, justin substantial amount of legislating work, including helping allies and their staff to draft reform bills that have become law. He is frequently invited by state house and Senate Committee chairs to testify on these topics and has done so over a dozen times, with occupational license reform being the most frequent topic. Justin received his law degree with honors from the university of miami and a bachelors degree from North Carolina state university. Outside of a. J. , he is on the Steering Committee for the federal Society Miami chapter , is on the James MadisonInstitute Board of directors and , and is a member of the American Enterprise institutes leadership network. Justin was very kind last night to have dinner with a group of law students and was very helpful in helping them think through their career plans, their studies, their curricula, and he is also generous to be giving his time here to us today , so please join us in welcoming Justin Pearson. [applause] earson thank you. Thank you, allen, for that generous introduction. Thank you all for having me. Its an honor to be here. I have one of the greatest jobs in the world. I wake up every morning, at i sue the government. Its a lot of fun. I highly recommend it. I am a constitutional lawyer for a Prestigious Law Firm called institute for justice. What that means is i never sue for money, and i never charge my clients anything. My salary and costs are paid for by over 14,000 donors. I go across the nation representing all Business Owners pro bono, free of charge. This is something i love doing. It is actually tied into the whole reason i went to law school in the first place. My mom is a Small Business owner in florida, and i went to law school, because i wanted to represent Small Business owners like my mom. My dream was to have my own law firm. And i did that. My first client was my mom. The problem was my clients could not afford to pay me to file big constitutional challenges, so i started doing more and more pro bona work and i eventually ended up at i. J. , and i now get paid a salary to do the type of thing i used to do for fun as pro bono work. I am very fortunate to have been able to devote my career to helping Small Business owners like my mom. There is no better place to do that than the institute for justice. I. J. Is the nations largest libertarian Public Interest law firm. What that means is that we are we represent clients from all different types of backgrounds and worldviews, and it turns out that we sue republicans just about as much as democrats. Violating the constitution is a bipartisan endeavor. We are the largest firm of this type in the nation. We are up to over 130 employees among our seven offices. One reason why i. J. Has become so large is that we have been tremendously successful over the years. In january, we will be arguing our eighth United StatesSupreme Court. In the previous seven, we won six of them. Overall, we win over 70 of our cases. Even though we intentionally seek out cases that people say cannot be won, and then we find ways to win them. I. J. Is able to be so successful is because i. J. Does not try to focus on every. Rea of the law instead, i. J. Focuses on four key areas. Property rights, educational choice, free speech, and economic liberty. When i say economic liberty, im referring to the natural right to earn an honest living without arbitrary government interference. Here in america, you should be free to pursue supporting yourself in whatever way you think is the best fit for you. If the government wants to interfere with that, they have to have a good reason. They have to have a good reason to prevent you from earning a living. It cannot just be that they like your competitor more than they like you. In the era of economic liberty, there is no topic that has a larger impact than the topic im topic that i am here to focus on today, which is occupational licensing. If you add up all the people impacted by minimumwage laws and union dues and any other issue you can think of with employment law, and you combine them, its less than the number of people who are affected by current occupational licensing laws. In the 1950s, only one in 20 americans were required to get an occupational license or a required to get a government permission slip to work. That number is now up to one in four. One in four. This tool was supposed to be this regulation was supposed to be a tool of last resort, that legislation enacted when there was no other way to achieve the desired goal. Now it is their tool of first resort. When people hear about they tendal licenses, to think about doctors and lawyers, but when your state has hundreds of occupational licenses, and every state does,. It is typically not for a doctor or lawyer, its for a dance instructor or auctioneer. These are all real licenses that exist. Right now we see an outbreak of legislatures wanting to license music therapy. Someoneis when volunteers their time to play music to kids in the hospital. It is ridiculous. It has led to such abuse, and 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. Four things that 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. Fact number one, and that only the last two administrations agree on this, but 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. 85 million american jobs every year. Here in alabama, that is 21,000. 21,000 jobs killed every year because of licensing laws. You dont need corporate welfare, you dont need all these handouts in order to create jobs. Just through modest reform of licensing laws, you could create thousands of jobs overnight. Let me give you an example. , we have had tremendous success convincing states to repeal licenses for africanamerican hair braiders. They do not have to have a license in order to braid hair. One of those successes was a mississippi. 3000 jobs were created in mississippi from repealing one license. Every state has over 100 licenses. Not every license will create 3000 jobs if you repeal it, but my point is, through relatively modest reform 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. At is billion with a b allen pointed out in his introduction, 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 for your haircut, its fine, but that is not going to hurt you, but if you are from a disadvantaged background and , and everything you buy costs extra, you might have to make some tough choices that you otherwise would not have to make. Point number three, 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 these studies were in california newspapers talking about how californias occupational licensing laws were increasing recidivism, it blew my friends minds. My friends in california, my friends on the left. How can it be that progressive policies are increasing recidivism . But of course, when you make more things a crime, you end up with more criminals. I dont know how this did not occur to them. When you are taking away someones ability to earn a nice living, they are more likely to turn to some other way to support themselves. And so these licensing laws increase recidivism. Fact number four, and this is really the kicker, sure they lead to recidivism, but consumers to be overcharged, but certainly they must protect health and safety, right . No, they dont. This was discussed in the Obama Administration official report, occupational licenses, among 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. It is all bad and no good. And it is a nationwide problem. We have these absurd licenses that should not exist in every state. Alabama is no different. You are basically in the middle of the pack. Institute of dude o justice, in terms of the burden created by licensing laws and how many licenses you have, you are the 25th best or 26th worst, so right there in the middle of the pack. You have a license for shampooers, but 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. It is not a license that should exist. Almost half of the states do not licensing requirement for auctioneers. In states that dont have that license, there are no problems being caused by the lack of an auctioneers license. It is one of the most difficult licenses to get. It is more difficult to get a license to be an auctioneer than in alabama than to become an emergency medical technician. And it is not that the regulations for emts are not strict enough, they are. It is that the license has no correlation at all with health and safety. All of these reflect who has the most powerful special Interest Groups, who has the most powerful lobby. When you hear about the stories, and you seal the jobs being being cost,jobs 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. 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 personally spoken to people who have been arrested and prosecuted for the crime of teeth whitening. I have also spoken to people who have been arrested and prosecuted for the crime of braiding hair. In orlando, florida, not too far from where i live, years ago, s. W. A. T. Teams, full s. W. A. T. Teams raided barbershops on the suspicion of unlicensed barbering. This is what happens when you have these laws. You increase interactions with police, and, 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. One of those individuals is a woman in texas named isis brantley. She is a hair braider, and she was literally arrested for braiding hair about a license. 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. Thankfully, she was able to fight back and eventually get the law changed. And then she got in trouble again, because texas law prevented her from teaching anyone how to braid hair. Even after the reform, when people wanted to go and be selfsufficient, and start their job is hair braiders, when they wanted to learn from isis brantley, 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 and ruled 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. I would like to do is show you her video quickly. This is hurting real people, causing real people to go to jail. [video clip] isis i got arrested for braiding hair. Is ais brantley professional african hair braider. She opened the institute of ancestral braiding and dallas and worked with everyone from erykah badu to the homeless. In 1997, she was arrested isis i teach other people how to braid hair, so they can become entrepreneurs. In 1997, she was arrested, because braiding was a crime unless you had a special license requiring years of schooling having nothing to do with braiding. She fought the licensing law. Although she won the right to braid, texas did not back down completely. It is simply added a 35hour license for braiding into the existing barber statute. Now isis is fighting for the right to touch the next generation of braiders. Isis can only teach the 35hour course at an existing Barber School. Otherwise, she has to build her own Barber School and take expensive and pointless classes. Mr. Pearson the bottom line is texas has no problem with her teaching. It does have a problem with her working for herself. To teach braiding in her own school the government says she , must turn it into a 2000squarefoot Barber College and install things that have nothing to do with braiding like , like adding 10 barber chairs and wash stations she will never use. She also needs things like equinsaired mann and she has to go back to school , for 750 hours. Mr. Pearson braiders are not barbers. Instructors should not be forced to build Barber Schools. That is why she is fighting for her rights once again. She is teaming up with the institute to file a lawsuit against texas. Isis it is economic liberty. Iteverybody else can do we want to change the law so everyone else can experience it fairly. A victory for her will help barbers in texas and beyond. Isis it is especially important for black women. This is our new civil rights movement. Mr. Pearson thankfully, we won the case. Isis is doing well. She is teaching people how to start their own. Usinesses it boggles my mind she had to be arrested and go to jail first. Obviously, there is a push for reform. I mentioned ways the trump and Obama Administration agree. There are also groups pushing for reform, all across the political spectrum. It is more difficult than you would think. We have had some success. Getting rid of an occupational license here, an occupational licenses, produce one in another place, and when we repeal two to three licenses, that is great, but when a state has 200 or 300, it is really just a drop in the bucket. I am going to talk about the challenges we face trying to repeal these licenses that should not exist at all, and second of all, i am going to talk about the challenges we face when we file lawsuits. Trying to get judges to throw out the law. First, in terms of trying to get reform passed, it is really difficult. The reason it is so difficult is because of a phenomena identified by public choice economists. Has anyone here heard of public choice economics before . I see some people raising their hands. Fantastic. Many people have not, but some of you have, because i am talking to a knowledgeable crowd, which is terrific. As you probably heard, public choice economics is often described as Political Science without the romance. Basically, instead of Political Science, which focuses on rhetoric and philosophy and why politicians say they are doing something, public choice economics focuses on why they politicians actually do what they do, and why voters vote the way they do. In these studies, economists constantly come across a problem that they call the problem of concentrated benefits and dispersed costs. And what that means is when you have a program or a policy that is horrible to society as a whole, where the net effect is a on the society as a whole is a negative effect, if that cost is spread out across all society, but that concentrated in the that 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. Or performed, and then that bill will go through the committee process. At that point, what will happen is legislators who campaigned on deregulation and who campaigned on helping out Small Business owners will try to water down the bill. The way they do this is almost always the same. You know, as it is being heard by committee, a proderegulation , supposedly, legislator will stand up and say, i need you to amend this bill. As you know, dont get me wrong i am a fan of deregulation. ,i am a fan of Small Businesses but there are a lot of people , from this particular occupation in my district. So i need you to amend this bill and take out the reform for that one license. If you do that, then i will happily support this good bill. And they do it. Then 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. At least nothing meaningful left. I have seen is all over the country, and it is incredibly frustrating. It is so frustrating, in fact, that it makes you start to wonder whether you even have a right to economic liberty. Legislatures certainly dont act like you do. They are wrong, though. You do have a right to economic liberty or at least you are supposed to. What i would like to do is talk about vindicating that right. And challenging these in court. And what we face when we do that. Often times, these challenges are brought under state constitutional provisions. People often forget that when the u. S. Constitution was ratified, the state constitutions for the original states were already in existence. The u. S. Constitution was drafted and ratified with the understanding these state s have constitutions that already exist. 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 at the beginning of your state constitution. They tend to be fantastic. They tend to have language about protecting natural rights. Or the only legitimate purpose of government is to protect life, liberty, and property. And liberty is often a subset of property rights. You have all these wonderful provisions that were supposed to protect economic liberty. And that, in fact, the framers constitution understood were already protecting economic liberty. So what happened . During reconstruction, it turned out the protections were not doing their job. The state judges were not doing what they were supposed to be doing in terms of ruling in favor of people whose rights were being violated. They typically took three forms during reconstruction. There were three types of abuses you tended to see. Former slaves and their white allies, they would have the right to bear arms taken away. They would have their right to vote taken away. The right to be selfsufficient taken away. You would hear these Horror Stories of freed men having to work for their former slaves because of occupational laws. Ngeventing them from bei selfsufficient. Under the 14th amendment, those were supposed to be the things protected. Youre right to freedom, your right to vote, and your right to earn a living. And then what happened . We have independent judges, people who should be willing to stand up for what is right, even when it is unpopular, recognizing the most important time is when it is unpopular. Certainly, that would protect aspiring entrepreneurs. But no, there is a reason that did not happen. It makes me think of what the founders said when they were drafting the constitution. Thomas jefferson warned the natural progress of things is for liberty to yield and government to gain ground. So the framers were particularly afraid of the fact government always likes to grow. They knew we needed government for some specific things. But it is always going to want to expand its powers. The framers did everything they could think of to keep government from growing beyond the purposes for which it was created. At the end of the day, one way 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. Any time the representatives conflicts, the painful duty of the judge is to rule that law unconstitutional. So if you have not read federalist 78, i recommend you do. It does not mean judges get to exercise well, exercise judgment, they get to decide which policies they like or dont like, but their job is to serve as a bulwark to keep government within its lane. First of all, my favorite quote 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, as well as the rest of the constitution, to become an impenetrable bulwark. I love that. You have this government that constantly wants to grow. Do more than one what he told it it is allowed to do. On the other hand, we have this impenetrable bulwark that will keep the legislative, executive, and judicial expanding. So what happened . The problem is not judges are impenetrable bulwarks. They are human beings. They tend to be smart, hardworking, wonderful. I hold them in high regard, but they are people. Sometimes they make mistakes. Sometimes the government slips one by the goalie and government grows. That is really the story of economic liberty under the 14th amendment. Those of you who have been a law school will know that shortly after the 14th amendment was ratified, the privileges or immunities clause, which was supposed to protect the 14th minute was eviscerated. ,some scholars from across the political spectrum agree that that case was wrongly decided. Nonetheless, here we are. It remains good precedent. The clause does not provide a lot of help. Certainly not the type it was supposed to provide. So then what happened next . Still have things like due we still have things like due process of law and equal protection. In the new deal, there was a fight between fdr and the courts. At the end of the day, 1930s, the Supreme Court decided there were some rights in the constitution, some parts the Supreme Court no longer cared about. There were some parts it did like free speech. Property rights and economic liberty, it did not care about. The parts that it cared about would receive meaningful review. The parts the court no longer cared about would receive the fa farcical rational basis test. Under that test, facts did not matter. The truth doesnt matter. It is designed to make sure the government almost always wins. When the president says for this judge made doctrine, it is the job of government lawyers and judges to try to make up sympathetic all rationales. To try to see how creative they could that. Kill it with alternative rationales. It is the job of the person challenging the law to negate every one of these conceivable rationales. It is a test to make sure the government almost always wins. That is a test that covers most of my cases. It was so bad, it has become so wasred down, that when i. J. Formed 30 years ago people told , the founders not to waste time bringing rational basis challenges. No one had won one since the new deal. No one had won an economic liberty rational basis test since the new deal, so dont waste your donors money. You are not going to win. But i. J. s founders realized there was a way they could win. The Supreme Court had not said we no longer have a right to economic liberty or property rights. Said thate court had it just is governed by a different test. As long as there is a test for those rights, then surely there is a law that must fail that test. So i. J. Went around, the early i. J. Lawyers went around and brought challenges on behalf of aspiring entrepreneurs under the rational basis test. Listen, obviously it was hard. When they walked into court, the government lawyer would say, listen, judge rational basis , test. No real search for the truth. Going on here. Dust off the old rubberstamp. The government always wins. But the thing is the government , was so out of control, some of so out ofstill control, that some of these regulations and enforcements were so ridiculous, that every now and then i. J. Would win. That site would grow and become easier to bring the next challenge. Even today, when i walk into court on behalf of a Small Business owner, the governor will say judge, rational basis test. They dont say dust off the old rubberstamp, but that is basically what they say. The government is supposed to win. I am always honest with the judge. Now we have a string site or a couple dozen cases where entrepreneurs and aspiring entrepreneurs have won rational basis challenges. So clearly the government does not always win. Clearly there is some level of role judging involved, and once we get to that point we have a , good shot. Because the government abuse is so ridiculously out of control. What i would like to leave you with, before we turn to q a, is i would like to talk about the three types of cases. When i dont have anything to rely on, i bring federal rational basis challenges. We bring occupational challenges. For the first, First Amendment challenges, the reason i bring First Amendment challenges, the First Amendment is one of the parts of the constitution the Supreme Court still cares about. That is why we do it. That is not the only way where we went economic liberty challenges. They were on behalf of Small Business owners. Commerce clause was something the Supreme Court cared about. They allow us to bring up federal constitutional challenges without having to litigate the rational basis test. It usually is a First Amendment challenge. We have won three cases. Getting licensing laws for tour guides struck down. Those were in washington, d. C. , charleston, south carolina, savannah, georgia. Our client there gave ghost tours. He basically told ghost stories, and yet the government said he should take a test. It makes no sense. I would like to see what test they could come up with. That is what the government tried to argue. We won under the First Amendment. Our client is telling ghost stories, as he should be. What i would like to do is talk about a First Amendment case that is pending. That is a case from the Florida Panhandle. Heather is from the Fort Walton Beach area. The case was brought in pensacola. Heather did not grow up in florida. She has lived a bunch of places. 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. Anyone who works out or exercises knows you tend to do better when you have someone there, kind of keeping you on schedule and preventing you from getting lazy. So basically she tells people to keep a food journal. She checks in with them to make sure they are keeping a food journal. She reminds them to eat their vegetables, things like that. Before living in florida, she lived in california. Let me tell you something, anytime you have a regulation that does not exist in california, you are doing something wrong. But that is a sad state of affairs in my home state. In florida. She was allowed to be a diet coach in california. She moves to the Florida Panhandle. She opens up her business, not realizing there will be any problems. In response, the state of wisdom, in its infinite conducts an undercover sting operation to confirm that she is reminding people to eat their veggies. Which, obviously, she says it in her website, they could have just called her out. But they believed they had to have a sting operation to confirm this fact not in dispute. At the conclusion of their investigation, they determined she was telling people to eat their vegetables, which violated floridas license for nutritionists. Heather, thankfully, was able to find i. J. s website and contact us. And we brought a lawsuit. It is a First Amendment case. It is a case where she, thankfully, because her work involves speech, she actually gets a meaningful judicial review. It is also a case where it is important that we win, because she is in a tough situation when it comes to licensing laws. By the time she has to jump through all the laws, she has got to move again. She literally cannot get this license. She just goes back to square one every time she moves. Assuming that she moves to a state that has the same license, she cannot even pass requirements before it is time to move again. So we bring a case in florida, and we lost we only lost because there is a controlling precedent at the 11th second that we believe is no longer good. But the Northern District judge pointed out she could not be the judge to overturn that precedent. I would like to show you heathers video to show you, as we speak, there are cases going on where we are starting First Amendment challenges. It is not that far from here. The Florida Panhandle is not that far from montgomery. [video clip] heather the day i got cited, i was blindsided. I could not believe that this is my life. I could not believe this was happening to me. To just having the carpet pulled from under my feet. Devastating. My name is heather, and i am a Certified Holistic Health coach. I guide people to put in healthier foods, and in doing that, you can take away unhealthy foods. We are a military family. We had to move and we moved to Fort Walton Beach, california. Florida from california. California, i did not require a license for health coaching. It never occurred to me that i would be prohibited in my career. The only thing that changed was that i moved state to state. One day i was sitting on my couch i got a knock on my door. , an investigator said i am serving you with a cease and desist and a 750 fine. I was floored. I learned a registered dietitian decided to report me. That cease and desist meant i could no longer health coach in the state of florida. That meant that a piece of my income and career and passion had been suddenly squelched. The penalty is, if i do not cease and desist, first degree misdemeanor, a year in prison, and a 12,000 fine for the first offense. I would need a bachelors degree in health. On top of the bachelors degree and masters degree i already have. A 900hour internship and to pass a Board Certified exam. I cannot pursue getting licensed in the state of florida, because the requirements are just too lengthy and too financially burdensome. We are 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 their words and advice about nutrition. Someone can be a Certified Holistic Health coach, write a book, publish it, and sell it in florida with the same advice i may give to an individual. But i cannot meet with that person and talk to them. A lot of my coaching happens 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 of justice, i am suing the state of florida for my First Amendment right to discuss nutrition with other individuals. Mr. Pearson heathers story, and even though we lost, i can tell you, we will probably win at the 11th story. Circuit. I can tell you her story is not unique. We get calls from military spouses from one state to another where it is either licensed but it is not licensed before. Squareve to go back to one should it is just ridiculous. It doesnt make sense to have people jumping through these hoops over and over again. In heathers case she has a good , chance of winning. Those are the First Amendment challenges we bring. The second type of licensing challenge, occupational licenses , we bring, under state constitutions. These very the first is sometimes the state constitutions will have provisions do not exist in the federal constitution. So for example, i have had success bringing antimonopoly clause challenges. About a dozen states have these. Antimonopol clauses. We also have clauses forbidding special laws. We have to look at the respective constitution in your respective state. Pretty much every state has something that will at least allow us to make an additional argument. Even at the state does not have anything different, state Supreme Courts are the courts of last resort for their state constitutions. Even when the language is identical, it is a prerogative of the state Supreme Court to say we interpret our constitutional language differently. They can never go below the federal floor set by the u. S. Constitution for protection of individual liberty, but they can go above it. And so that happens. And that is helpful. It doesnt mean we are always going to win. In fact here in alabama, we lost actually lost a case where we challenged a teeth whitening license. We argued that the precedent was different than the federal president. The alabama Supreme Court disagreed and we lost. Overall, we tend to win these cases more often then we lose. We tend to win under the federal rational basis test. I am a big fan of bringing constitutional state challenges, and we went quite a few of them. Maybe we will win one in alabama as well. Those of the first types of challenges that we bring. And then, of course, sometimes there is no reason to think state constitution will provide any more protection than the federal constitution. Other times, it is clear there will not be any way we can get the case into the First Amendment or another part of the federal constitution. That the Supreme Court 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 earlier for , about half a century, it never happened, you would never win one of those challenges and , people thought it could not be done. But we have been winning them, but it is still extremely difficult. In order to illustrate the progress we have made and how difficult it remains, i would like to talk about a line of three cases we brought. They involved the same type of law. It involved the sale of caskets. It said, when you die, you dont have to be buried if you do not want to be. If you do, you do not have to be buried in a casket if you dont want to be. It can be made out of just about anything you want. If you want to be buried in a casket made out of wood, you can buy it from just about anyone as long as the person is from out of state. If you want to buy it from a human being in your state, they have to be a licensed funeral director, even though they do not build caskets, and casket builders do not direct funerals. A casket is a wooden box. The whole reason these laws existed was because Funeral Directors made a tremendous amount of money serving as middlemen. It is outrageous. The first case we brought was a case called craig miles vs. Tennessee, challenging the law we just described. About 20 years ago. It was a federal case. We negated every possible conceivable rationale the government came up with. Then the case boiled down this is how bad these cases had become. Weather protection for no other state was a rational basis. That case was about whether you could win a rational basis challenge and we did. The District Court said, no, protectionism is not a legitimate interest. The state of tennessee appealed, and we won again. Same logic. Protectionism is not a legitimate government interest. So we won. That was the First Federal economic liberty win in half a century. Which was great. So we bring another case. In oklahoma, same law, same fact, same situation. Negate every possible rationale. The case boils down to whether protectionism itself was a legitimate interest under the constitution and we lose. We lose in District Court, so we appeal. And we lose again. The logic is so outrageous, and i want to pull up the quote. I want to make sure i get it absolutely right. Here is what a federal Appellate Court said in a case upholding a law against our challenge. Quote while baseball may be the , National Pastime of the citizenry, dishing out economic benefits to certain instate industries remains the favorite occupation of state and local governments. So that is a federal Appellate Court saying yes, everything you are saying is true, it does not matter, there is no judging to be done here, go away. The circuit is split. The Supreme Court does not take the case. So we get angry. We pull out all the stops. When we file these cases, we get a kind of media attention. All sorts of people ask us for help. Does anyone know who we represented in our louisiana i know you know, andrew but does anyon anyone else know who we represented in our louisiana casket case . Monks that is right. First rule of Public Interest law whenever possible, represent , monks. So that is to be represented in louisiana. We represented the st. Joseph abbey, which is a monastery in louisiana. These monks live by a philosophy where they do not 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, whatever it is that monks need, they took wood from their property and sell these nobleuild these simple, caskets 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. We agreed to take the monks case and file a challenge. We filed it in federal court in louisiana. Before i go any further, let me play you the video. It is going to be the last video i play. I love the videos. One of the cool things about i. J. Is we have a great team of people who are Video Production people. I think they made a fantastic video. This is the video we released before we filed the lawsuit. [video clip] monks, we feel very sad. We have a right to an honest living through the building and sales of our caskets. But louisiana does not as monks have done for centuries, the brothers of st. Joseph at the put food on their table through the labor of their own hands. Monks of st. Josephs abbey have been making caskets for over 100 years. People who ask for them want to share in that noble simplicity our coffins express. My husband really wanted to have a simple burial. He wanted to have a simple wooden coffin, and the monks were able to provide that. It is a crime to sell a casket unless you are a licensed funeral director. The government have launched proceedings to punish them. For the sin of selling a casket, which is just a box, the monks face crippling fines and even jail. They also lost an important way of supporting themselves. We are not a wealthy monastery. We need the income that st. Joseph woodworks could generate for the health care and the education of our own monks. The state is going after them because licensed Funeral Directors want the casket market for themselves. Have teamed up with the institute for justice and the major federal lawsuit to protect the right of every american to earn an honest living free from 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 that is what it takes to restore economic liberty to grassroots entrepreneurs everywhere. The law was ridiculous. Said they had to install an embalming room in the monastery even though they did not want to involve anyone. It made no sense. So we brought a challenge and thankfully we won. The case boiled down to whether protectionism was itself a legitimate interest. The District Court agreed it is not. They agreed with the sixth circuit as opposed to the 10th. It goes to the fifth circuit. We win again. Thankfully. The state of louisiana filed a certain petition, but it was denied. There remains a three circuit split. Two going the right way, one the wrong way. I should point out, even though those are the only case is cases about selling caskets, there have been other cases talking about whether protectionism is a legitimate government interest. Some of those involved teeth whitening, pest control. More often than not, the courts are saying protectionism is not a legitimate government interest. Some are ruling the other way. The circuit split deepens every time that happens. Hopefully the Supreme Court will take one of these cases. Hopefully it will be my organization. We know this issue better than anyone. Hopefully when that happens, the Supreme Court will rule the right way, but i cannot guarantee it. The Supreme Court has not showed they are very interested. We have 80 years of bad precedent. In the meantime, i am fortunate i get to spend my time going around the country, chipping away at 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] we have a little bit of time for questions. Do we have any questions . Have you been able to negotiate the states to limit . Or are you just abolishing the regulation . Or coming up with something practical that does not require the onerous that is a great question. There are all sorts of regulatory approaches that can be taken other than banning people from working. Banning people from working should be the last resort. Perhaps you are worried about flybynight operators where you want to make sure they are or have an insurance requirement. Our approach is not to try to water down the licenses. What we are often open to is replacing the licenses with something that does not ban work. When all else fails, and i suppose reducing the requirements is better than no reform at all. We are trying to get legislators out of the mindset they should be banning people from working and helping them to realize there are other tools available in their toolkit they can use without deregulating an industry. I know it scares some people. There are things you can do that will not ban people from working. We definitely push them in that direction. We have a mic. [indiscernible] what is the status on that . Not every municipality has that approach but a shocking number do. They will say anything not expressly allowed is forbidden. I think that is extremely troubling. That goes beyond licensing laws. That involves food truck laws, zoning laws. All kinds of things that go beyond the scope of licensing. What i will tell you is that does exist. You dont need a state license to get around that. There are other ways to approach that. That is a broader issue. Sadly, that is something we continue to see in municipal codes. I dont think those approaches should be taken. I know we have quite a few regulatory boards in alabama who are concerned about sherman antitrust problems. I think it was the North Carolina board of dental examiners. What are your thoughts . Thank you for bringing that up. I was talking in my speech about constitutional challenges. Specifically challenges to licenses. There are other ways to challenge these provisions in court. Particularly if you are going after the makeup of the board. That is what happened there a few years ago, the Supreme Court ruled correctly when you have a government licensing board that is comprised entirely of private actors, in that case dentists, they should not receive the same form of immunity that other parts of the government received. Saying you cannot sue the government for violating antitrust licenses. You had this dental board who consisted entirely of dentists who decided no one should be allowed to compete with them on anything that could be described as dentistry. The dental board passed regulation saying only dentists could provide teeth whitening. They brought an antitrust challenge saying it did not apply in that situation. It was given the title of a government entity. If you look at the members, none of them worked for the government. It went to the Supreme Court. Before too much longer, you are going to see some antitrust class action challenges against some of these boards. That is going to be interesting to see. It is not what i do. Im not an antitrust lawyer. It could end up being helpful. We have time for one last question. Have you considered joining a consumer to your action . I have a texas lady saying, i dont want to go to a licensed barber, i want isis to braid my hair. You are interfering with my right to have my hair braided how i want and by whom i want. Have you considered joining that way . Yes, we have. We have done that in some cases. We tend to have the entrepreneur as the lead plaintiff but there have been quite a few where one of the secondary plaintiffs will be a consumer. That is true for a lot of our economic liberty and free speech cases. The person who wants to hear the speech is being harmed, too. I think adding them in as plaintiffs is helpful to show the court how ridiculous the governments logic is. The governments love to get on their high horse and talk about how they are protecting the public. We have members of the public not want to be protected. We want to contract with this person. I dont think we have noticed a difference we can quantify based on the outcomes when we have a secondary plaintiff who is a consumer, but i think it has to help. I am a big fan of doing it like that, and i hope we continue to. Thank you. [applause] our campaign 2020 coverage continues thursday with President Donald Trump in ohio at a keep America Great rally. Onch on cspan. Org or listen the go with the free cspan radio app. 2020, watch our continuing coverage of the president ial candidates on the campaign trail and make up your own mind. As the voting begins next month, watch our live coverage at the Iowa Caucuses on monday, february 3. Cspans campaign 2020, your unfiltered view of politics. Commerce ande Science Committee looks at policies to help build nasas workforce. [indiscernible chatter] senator cruz good afternoon. This hearing is called to order