What Congress Can Learn From Lawsuits Defending African Hair Braiders
Isis Brantley is among America’s top African hair braiding experts. Until Wednesday, Texas laws prevented her from teaching her skill, requiring she spend thousands on barber school, if she was to continue teaching her 35-hour hair braiding — not hair-cutting — course. They also included blatantly protectionist provisions, waiving all requirements if Isis instead taught braiding at an existing barber school.
Last Wednesday, the Institute for Justice — the self-proclaimed “national law firm for liberty” — won the case for Brantley. The court declared the laws unconstitutional.
While Congress doesn’t litigate nor rule on cases, it can learn from IJ’s personalized approach to fighting regulations. Timing is ideal, as the new Republican Senate majority is eager to pass legislation, including regulatory reforms, it was unable to get through Senator Harry Reid’s iron-fisted reign as majority leader.
Passing reforms will require good legislation, enough votes, and good messaging. The latter can be particularly difficult. “Regulatory reform” doesn’t always excite. That’s why Republicans should look to IJ. Not only has IJ had immense success litigating on behalf of those harmed by economic regulations that violate the terms of the Constitution — it has also messaged and personalized their effects in a way few have.
IJ litigates and advocates “both in the courts of law and in the court of public opinion on behalf of individuals whose most basic rights are denied by the government.” They take on many cases implicating the right to economic freedom — one deeply rooted in our nation’s history. Although the Supreme Court has consistently affirmed that each has a right to earn a living in the occupation of his choice, that right has too infrequently received meaningful protection, thanks to legislatures eager to pass unconstitutional laws, and courts’ widespread use of a government-favoring standard of review called the “rational basis test.”
That’s where IJ comes in.
IJ’s economic liberty cases relate to different professions, from African hair braiding to craft beer. It has long advocated for the rights of entrepreneurs who provide alternatives to taxis, like Uber and Lyft, to compete in the free market. They won a 2013 case challenging Milwaukee’s cap on the number of taxis permitted in the city, intended to protect the taxi cartel, and are currently litigating similar cases.
Clark Neily III, IJ Senior Attorney and head of their Center for Judicial Engagement, detailed his heart-wrenching experiences documented in his book, Terms of Engagement. One case challenged a Louisiana law requiring florists to be licensed that purported to protect public safety, but in reality only protected florists from competition. The lead client, Sandy Meadows, was a widow whose only means of making money was floristry. She was not able to pass the licensing exam, part of which was graded by a panel of florists. The pass rate was only 33 percent — half the Louisiana Bar’s pass rate. Neily lost the case and Sandy lost her job. She passed away two months later alone and in poverty because a federal judge could not be persuaded to protect her right to work in a harmless occupation.
“Heart-wrenching” isn’t a word commonly used to describe the effect of burdensome regulations, but Neily effectively creates emotional connections to those for whom he litigated and inspires outrage at the regulations. If this license requirement had been stricken by a judge (or never passed into law in the first place), Sandy’s fate would have been different. The GOP can embrace this approach — demonstrating the real consequences of government harming people by removing opportunity from the land of opportunity to protect entrenched interests.
Republican National Committee Chairman Reince Priebus has said “You hear Republicans talk about regulations a lot. There’s a reason. Regulations come between you and a job.” IJ’s work, including Neily’s litigation, makes Chairman Priebus’s case.
While much of IJ’s work focuses on litigation as a means to strike regulations, Republicans in Congress can reform and prevent burdensome regulations before they cause the kind of harm that causes the lawsuits IJ litigates.
Whether Republicans are challenging EPA regulations on power plants or trying to make headway in reforming Obamacare’s impact on businesses, they can use IJ’s work as a guide. This means highlighting the stories of those impacted — whether they’re plant workers at risk of losing employment, or employees whose hours were cut due to Obamacare — and detailing how regulations caused them harm.
A March column by former Rep. Eric Cantor is laden with anecdotes demonstrating how Obamacare’s provisions caused people to lose work. While they helped make the emotional connection, had the stories been more in-depth, they would have allowed readers to deeply understand how people were impacted. Consider how “Joe The Plumber” was championed as an average man whose aspirations would be impeded by then-Senator Obama’s policies, if he were to become President Obama. Adding a face, a story, and a life to the discussion made somewhat obscure policy hit home.
The task of relating complicated and seemingly impersonal regulations has long been challenging. Fortunately, IJ has led the way by showing the real, personal impacts they have. Newly empowered Senate Republicans and all looking to reform regulations can look to IJ’s work as a guide.