Welcome you to happens next.
My name is Larry Bernstein.
What happens next is a podcast which covers
economics, education, and culture.
Today's topic is gerrymandering and economic liberty.
Our first speaker will be retired federal judge,
Gary Finerman, who recently joined the law
from Latham and Watkins as a partner in litigation.
Gary will discuss the recent case in North Carolina
related to gerrymandering and whether the state courts
can overrule the state legislatures
redistricting maps.
Our second speaker is Renee Flarey,
who is the attorney whose accessory already
the case of Jackson versus Rafford's burger
in the Georgia Supreme Court.
This case is about the limits of state authority
to regulate occupations.
Jackson teaches new mothers how to breastfeed,
but the state changed the licensing for that job
demanding that she meet minimum education requirements
that would prevent her from doing her chosen profession,
which is counseling lactation care.
Renee isn't attorney with the Institute for Justice,
a NAFTA profit that challenges government overreach
on licensing and regulation, as well as infringement
on individual property rights.
Let's begin today with retired judge Gary Finerman's
opening six minute remarks.
Thank you, Larry.
Thanks for inviting me back.
The Supreme Court just ended its term.
It was another monumental term.
Last week, I believe you discussed
that affirmative action case students
for fair admissions versus Harvard and University
of North Carolina.
There's also the case that I'm going to talk about
more versus Harper, which has been described
by former court circuit judge Michael Lutig
as the most significant case in recent memory.
So in terms of the factual backdrop,
after the 2020 census, the North Carolina legislature
rejrew the state's congressional districts.
And the legislature engaged in a highly effective
or political gerrymander, although North Carolina
is close to a 50-50 state Democrats versus Republicans.
The map had 10 Republican majority districts
and three Democratic majority districts,
which was an extraordinarily efficient political gerrymander
even by the standards, Larry, that you and I
are used to here in Illinois.
Four years ago, the US Supreme Court in a case called
Root Jo versus Common Cause held that the federal constitution
is not prohibit partisan gerrymandering.
So you can no longer go to federal court
and argue that what the North Carolina legislature did
in this case violated the federal constitution.
But states have their own constitutions.
And many state constitutions either explicitly prohibit
partisan gerrymandering or have more general provisions
that state courts have interpreted
to prohibit partisan gerrymandering.
North Carolina citizens, North Sudan, North Carolina
state court, and last year, the North Carolina Supreme Court
held that the North Carolina Constitution
prohibits political gerrymandering.
And that prohibition invalidated the legislature's map
as an unlawful political gerrymander,
the state Supreme Court directed the state trial court
to draw a new map that resulted
in a less skewed congressional delegation.
The supporters of the map petitioned
this US Supreme Court for surgery
and the court heard arguing that this last term
had issued its decision last week.
The legal backdrop here has become known
as the independent state legislature theory.
And that theory arises from the elections clause,
which is an article one section four of the US Constitution.
And it states the times, places, and manner
of holding elections for senators and representatives
shall be prescribed in each state by the legislature
they're out.
But the Congress made at any time by law
make or alter such regulations.
What the proponents of the independent state legislature theory
said and argued is that the elections clause
reposes in state legislatures the authority
to set election rules and draw maps
for congressional elections, for federal elections.
And that the only body that can counterman
the state legislature in the Serena is Congress.
So according to the proponents of the independent state
legislature theory, a state court may not invalidate
a state legislative enactment with respect to maps
or other regulation of federal elections
by pointing to the state constitution
or some other provision of state law.
So the maps, challengers, had a couple arguments
in response, they pointed to the text of the elections clause
acknowledged that instead of state legislature,
but argued that that phrase pairs with an implicit understanding
that the state legislature must act in accord with substantive
and procedural rules set by state law,
including judicial review by the state courts
for compliance with the state constitution.
They also pointed to historical practice
at the founding that state courts did have the power
to ensure that the state legislatures comply
with state constitutions, including in the context
of federal elections.
Why is this important?
If the proponents of the independent state legislature
theory prevailed, it would have upset long-settled
understandings regarding the relationship
between state legislatures and state courts,
it would allow state legislatures to operate
in a state constitution free zone
when it comes to federal elections.
And there is also a political component,
the state legislative maps are themselves jerrymandered,
and unless they engage in self-control,
if there's no state constitutional constraint
enforceable in state court against political jerrymandering,
they will jerrymandered US House districts
to the maximum extent possible,
with no recourse in federal court due to Rucho,
which I discussed a moment ago,
or in state court, if in fact,
the independent state legislature doctrine prevailed.
So the US Supreme Court rejected that strong version
of the independent state legislature doctrine
by a six to three vote,
and it upheld the decision of the North Carolina Supreme Court.
Chief Justice Roberts wrote the opinion,
joined by Justice Kavanaugh and Barrett,
and the three liberal justices,
Sotomayor, Kagan, and Jackson.
And there were three dissenters,
Justice Tomas Alito and Gorsuch,
all three of them believed that the case was moot
and shouldn't have been resolved in the merits,
and Justice Tomas and Gorsuch went on to cast down
the majority's understanding of the elections clause.
So what the majority held is that the elections clause
does not insulate state legislatures
from state judicial review,
when laws setting the rules for federal elections
are challenged under state law.
And the majority reason that the framers understood
that when legislatures make laws,
they are bound by the provisions of the very documents
that gave them life,
and hear the documents of the state constitutions.
But the court was careful not to give state courts
a blank check.
The US Supreme Court held that when entertaining challenges
to laws enacted by state legislatures
regarding federal elections,
state courts may not transgress
the ordinary bounds of judicial review,
such that they irrigate to themselves,
the power vested in state legislatures,
to regulate federal elections.
So what happens next?
There are two areas where we could expect further litigation
arising out of more versus however.
The first is to answer the question,
what does it mean for a state court to transgress
the ordinary bounds of judicial review?
In other words, how much difference will the US Supreme Court
give to state courts
when state courts interpret and apply
state constitutions to the work of state legislatures
when it comes to federal elections?
The second issue that could arise
is what's gonna happen to the electors clause.
The electors clause is a different clause
of the constitution than the elections clause,
and it deals with the selection of electors
for the electoral college,
which those aren't to select the president.
And the electors clause states that each state shall appoint
in such manner as the legislature thereof may direct,
and here we have the reference to the legislature again.
So the question will become,
whether the US Supreme Court will apply the same construct
from more versus Harper about the relationship
between state courts and state legislatures
in the context of selecting electors
for the electoral college under the elections clause.
I don't know the answer to that question,
but we could very well find out the answer
in either late 2024 or early 2025.
The independent state legislature theory
was rekindled during the case of Bush versus Gore.
As listeners may recall,
the Florida recount was certified by the secretary of state
and then Gore litigated in the Florida courts.
Gore sued successfully in Florida state courts
to recount ballots only in the counties where Gore won
and not where he lost.
In Chief Justice Rhenquist's concurrence opinion,
he stated that the Florida courts had gone rogue.
They were hijacking the job of the state legislature
in determining the rules on how to select Florida's electors.
Chief Justice Rhenquist did write an opinion
in Bush versus Gore, but it was a good occurrence.
It was not the majority.
It was just for himself and Justice's Scalia and Thomas.
So his view of the electors clause
did not command the majority of the court.
What the court held in Bush versus Gore
is that the Florida Supreme Court violated
the Equal Protection Clause.
It didn't turn on anything having to do
with the elections clause or the electors clause.
Chief Justice Rhenquist did find
that the Florida Supreme Court for lack of a better phrase
kind of went on a frolic and detour
and wasn't really acting as a court
in terms of interpreting state law,
but still the Chief Justice's standard
that he articulated in his concurrence,
the standard that Justice Souter articulated
in his dissent are fairly deferential to state courts
in terms of their interpretation of state constitutions
of decisions made by state legislatures
in the federal election context.
When you were describing the facts of this case,
you mentioned that the North Carolina Supreme Court
ordered the lower court to create its own gerrymandered map.
It's one thing to evaluate whether the congressional map
is constitutional and it's quite another thing
for the court to create its own map
and act like a legislature.
It's a very tough and interesting question
that you raise.
What oftentimes happens in these state cases
is that the state Supreme Court will invalidate
something that the legislature has done
and then send it back to the legislature to draw a new map.
And let's say that the state legislature digs
in its heels and doesn't fully effectuate
what the state Supreme Court had required.
So it goes back to court, the state Supreme Court says,
nice try but not good enough and then sends it back.
And you could see kind of a vicious cycle emerging
where nothing ever gets done.
So at some point, just as a practical matter,
the courts, whether it's a state trial quarter,
state Supreme Court, will have to step it and draw the map.
Now as a practical matter, I think that's what ultimately
has to happen in at least certain circumstances
where there's just a standoff.
But I do recognize your argument
that it's no longer a state legislature
at that point in the state court.
And I imagine this is one of the things
that the US Supreme Court will have to contend with
in the aftermath of Moore versus Harper
in determining what are the outer bounds of a state court's
authority to interpret the state constitution
consistent with the elections clause.
In Bush versus Gore, the recount was under severe time
constraints because under the law, the results
had to be tabulated by a certain date.
There was some chatter at the time that the state legislature
could simply vote and determine
that Bush was notorious in the election
and then appoint the electors.
How will real world constraints impact the future relationship
between the courts and the state legislature?
I mean, you may be drafting up on a story board cases
that we're going to see in late 24 and early 25
where there may be challenges and a state legislature
may step in and just declare the winner
of that state's electors for presidential election.
And then that will present the question
that the Supreme Court did not have to reach in this case
because it was about congressional districts
and not presidential electors as to what is the power
of the state legislature in that kind of a situation
and can it be checked by a state court?
There's another issue that could come up.
The state legislature came in afterwards
and decided the winner.
I'll just quote it again.
It says, each state shall appoint in such manner
as the legislature thereof may direct.
I think that there's a view that that electors clause
allows the extent of the state legislature's power
under the leave of the electors clause
to set the rules ahead of time before the election
and then not to come in afterwards and say,
okay, this is who we think what?
There are folks who disagree with that temporal reading
of the state legislature's powers under the electors clause
and can these state courts step in and say,
no, state legislature, what you just did
in the instance of your hypothetical
to just award electors after the election has occurred
whether that violates the state constitution.
Some states through referendums, limit-gary, mid-ring,
how does this square with the state legislature requirement
in the election's clause?
Well, the Supreme Court actually resolved that issue
a few years ago.
I think it may have been 2015 or 2016
in the Arizona state legislature case
where the citizens of Arizona adopted a constitutional provision
that were posed in an independent commission,
the ability to draw congressional districts
and the legislature sued and said, no, no,
the elections clause says that it's us
and with the Supreme Court held,
I believe it was a five to four decision
authored by Justice Ginsburg that a state commission
in that context exercises legislative authority
and therefore falls within a definition of legislature
in the elections clause.
Interestingly enough, Chief Justice Roberts
dissented from that decision,
but in his opinion and more versus Harper
and just proving what an institutionalist,
Chief Justice Roberts is,
he took the Arizona state legislature case
as settled law and applied it and deployed it very effectively
to advance the majority's decision in the case
regarding the nature of the elections clause.
More versus Harper was decided six to three
and the six Republican judges were split in half.
Was this a partisan issue?
It's not a partisan decision.
I mean, just on its face, it was a mixed bag,
at least with respect to the Republican appointees.
What the judges are working to is the meaning of the Constitution
and in deciding the meaning of the Constitution,
they of course have their interpretive methodologies
at a 30,000 foot level due as a general matter,
although not always,
map on to kind of a conservative approach to interpretation
versus a liberal approach to interpretation
and the cars are going to fall where they might
in terms of politics.
There have been elections that were virtual ties
and there's been other elections with malfeasions.
In 1876, Congress and the Supreme Court had an electoral
commission to determine the presidential results.
In 1960, there was evidence of cheating
by the Democrats in JFK's winning election over Nixon
in the states of Texas and Illinois.
Who should determine these electoral outcomes
that are complicated and inherently political?
And why do you favor courts to resolve disputes
generally arising over an election?
Should it be the state legislatures,
commissions or other organizations that can evaluate
real-time, complicated, mixed up election disputes?
Remember that Palm Beach ballots, the hanging chads
and the other craziness in Florida in 2000
and more recently, Trump's dispute election in 2020.
There is no ideal forum in which to resolve these disputes.
So the question then becomes, what's the best form
in adjudicating whether there's election fraud?
The courts are the best place to do it
rather than a legislative body or an executive body.
Both sides generally understood that it was the courts job.
And I believe that the Trump campaign brought some,
either they or their affiliates or allies brought
some 60 lawsuits and lost all but one of them.
What I will say is that the federal courts did their jobs.
I'll mention three, there was a case out of Pennsylvania
where the third circuit ruled against President Trump
in a decision written by Judge Bevis,
who is a Trump appointee.
There was a case out of Wisconsin
that ended up going to the seventh circuit.
And the seventh circuit ruled against President Trump
in a decision authored by Mike Schutter, a Trump appointee.
There was a decision in the 11th circuit
resolved again against President Trump.
And it was a decision that was authored by Judge Kevin Newsom,
a Trump appointee.
So that very, very fraught situation
that who is a country we're facing in late 2020
and early 2021 went to the courts
and the courts resolved it under the law
in a completely nonpartisan manner
because of courts deciding things in a partisan manner.
Those three decisions I mentioned
and probably many others among the six of that were filed
would have come out a different way.
The founders thought that many elections
would be settled by Congress.
Why isn't the ultimate political body,
the Congress, the best place to resolve
these kinds of disputes,
especially when it's repeating game
with elections held every two years?
Congress could come in under the elections clause
and set the rules of the road for state-ledged soldiers.
They haven't done it with respect to political gerrymandering
but they have done with respect to race discrimination
under the voting rights act.
So could you get Congress a political body
to pass a law saying that other legislatures
can't engage in political gerrymandering?
Not so sure that that's gonna happen
but I think it would certainly be within Congress's power.
The fact that Congress has not taken action
on a gerrymandering issue to me
is indicative that Congress doesn't find
gerrymandering that problematic.
Otherwise, they would do something about it.
Yes, that could be many members of Congress
on both sides come out of politically gerrymandered districts.
So in a fact to ask Congress to pass a law,
that doesn't allow for political gerrymandering
would be asking a number of members
to vote against their own interests.
And I'm not saying that it's not conceivable
that individual legislators,
whether they're in Congress or in state legislatures,
would vote against their own electoral interests.
That certainly can't happen.
And the better angels of their nature could prevail
and they could come together and achieve a consensus
on a result that would be good for the body politic as a whole
as opposed to thinking solely about their own next election.
Some other legislatures may do that,
but oftentimes it has to be left to the voters
in a state referendum like what happened in Arizona
or state courts enforcing the state constitution,
state constitutional provisions either directed towards equality
or fairness in general.
That was the North Carolina 2022 decision.
There were any other state court decisions as well
that take a dim view of political gerrymandering.
Do you think that more versus Harper
means the depth of the independent state legislature
theory as an ongoing constitutional matter?
It is the depth of the strong version
of the independent state legislature theory
and by strong version I mean the theory
that state legislatures can operate without interference
from state courts reviewing state legislative actions
or compliance with state constitution
or other state law.
It's not the end of this area of the law
for the reasons that I mentioned in my opening,
which is we don't know what constraints
the US Supreme Court will impose on the state courts
review with respect to federal elections.
In other words, we don't know what the Supreme Court
will consider the ordinary exercise of state judicial review,
what will be deemed in bounds, what will be deemed out of bounds.
And if you wanna characterize that as under the rubric
of the independent state legislature theory
then I suppose it's not dead, but certainly the strong version
that we've all been talking about
is no longer a viable theory.
Earlier you mentioned that Roberts was an institutionalist.
So even though Roberts voted in the dissent
in the Arizona State Commission gerrymandering case,
he later applied the majority's opinion
a few years later as settled law in this more case.
Meanwhile, Justice Thomas did not behave that way.
Thomas joined Rehnquist in the concurrence in Bush v. Score
and continues to advocate and is to set in more
with the same philosophical arguments
of what the constitution means
and is not influenced by this so-called settled law.
What is the appropriate action for a Supreme Court justice?
Should you follow your own view on the constitutional framework
or follow the majority's opinion from previous settled cases?
Well, it depends on your view of stare decisis.
Chief Justice Roberts has a stronger view
of stare decisis than Justice Thomas has
and Justice Thomas has been buried.
What's right about this?
He's written about this in separate opinions
where he is saying that it would violate judicial function
to place too much importance on stare decisis
that the court has to decide things
in accord with what the court believes is the right decision
and not be bound by prior decisions
that the current court thinks are incorrect.
So if you strongly adhere to stare decisis,
there are situations where you are overturned precedent
that only in very particular circumstances
and you will apply precedence,
even if you believe that they were wrongly decided.
So long as the precedents don't fall within an exception
to stare decisis,
whereas Justice Thomas is more of the view that
if it's wrong, it's wrong and we ought to make it right.
Justice Harlan in his famous descent
in Pussy versus Ferguson laid the groundwork
towards reversal nearly six years later in Brown.
Justice Ginsburg said she writes her descent
so that future justice can find reason
to overturn a particular decision.
And Justice Alito laid out in dobs
why he thought that row is wrongly decided
and must be overturned.
What do you think should be the appropriate standard
for overturning precedent?
It just can't be solely because the current court believes
that the prior court made a mistake.
There has to be an extenuating circumstance.
One of the extenuating circumstances
is if a precedent has proven itself to be unworkable.
It's had a standard that courts in the ensuing years
just aren't able to apply sensibly.
There's another exception to stare decisis
is if the prior decision isn't just wrong,
but is egregiously wrong.
Whether a prior decision is wrong or egregiously wrong
is often in the eyes of the beholden.
At least as to Alito and Ginsburg,
they articulate the same construct, I believe.
Now they will disagree in its application,
like if Justice Ginsburg were alive,
I don't think she would agree that row versus
wave was egregiously wrong,
which is what Justice Alito concluded.
Ginsburg and Alito, I believe, apply the same construct.
They just would reach different decisions
in different cases as to whether something was wrong
or something was egregiously wrong.
I think Justice Thomas operates under a different construct
where a prior decision doesn't have to be egregiously wrong,
to be overturned consistent with what he views
as the proper role of stare decisis.
What are you optimistic about
as there are a way to a court's decision
in more versus Harper?
Harper makes me optimistic that courts will view
decisions and issues that have a political tinge to them
in a manner that derives from their
interpretive methodology and their view of the Constitution.
The courts did that in 2020.
I'm hopeful that the courts will continue to do that
in 2024 and optimistic that they will do so
and then in the ensuing years.
Thanks, Gary.
We now move on to our second speaker, Renee Flarety,
who works with the not-for-profit law advocacy group,
the Institute for Justice,
that defends individual property rights
and economic liberty.
I'm a long-standing supporter of IJ
and I've asked Renee to discuss
her recent victorious case in Georgia.
Thank you for having me.
My name is Renee Flarety
and I'm a senior attorney at the Institute for Justice
where nonprofit public interest law firm founded in 1991
and we represent ordinary Americans for free
and cases against the government when it violates their rights.
We're very busy because the government
violates people's rights every day at every level,
local, state, and federal.
But our clients are special
because they're working not just to change their own lives
but to change the world.
That's the point of public interest litigation.
We're working to set precedent
that helps everyone in advances our mission.
We work in many different areas, free speech,
property rights, educational choice,
and what I'm here to talk about today, economic liberty.
Economic liberty is the right of every American
to earn a living in the occupation of their choice
without unreasonable interference from the government.
The case I'm here to talk about today was in Georgia
but it's that precedent that judges all over the country
will be looking at and it all started
with lactation consultants.
Those are people, usually women,
who help moms breastfeed their babies.
So it's an occupation that people have been doing
since the dawn of time and doing it quite well
and safely without interference from the government.
But in 2016, Georgia decided
to license lactation consultants.
Under that law, my client, Mary Jackson,
who has over 30 years of experience as a lactation consultant
didn't qualify for a license.
This is a woman who teaches doctors and nurses
how to help breastfeeding moms
and she's one of the leading experts in the country.
She was going to lose her job
but instead, she teamed up with IJ
to challenge the law in court.
We sued in 2018 and after five years of litigation
two trips up to the state Supreme Court, we won.
The court ruled unanimously that Georgia's law
violated my client's right
to earn a living free from unreasonable interference
from the government.
Unfortunately, judges often defer to government lawyers
when they say that a law is justified
no matter what effect that law is going to have
on real people or the real reasons behind the law.
And what's special about the Georgia Supreme Court's decision
in this case is that the judges held the government accountable
for what it's doing.
And that's a big deal because sadly,
it's really difficult to win these type of cases.
States regulate most professions.
What makes an unreasonable government licensing requirement?
When the government wants to regulate an occupation,
you have to ask why are they doing it?
Is it to actually protect the public health and safety
or is it for a different reason?
And in this case, with lactation consultants,
the reason for the law was actually pretty clear.
It was because one group of privately certified lactation
consultants lobbied the legislature to get the license passed.
And so that, according to the court,
is not a legitimate aim of the government
to protect one group from competition from another.
This is not the first time that the Institute for Justice
has fought to limit the power of the state
to acquire needless licenses.
Tell us about your ongoing battle
to allow individuals to braid hair.
We've done many different cases about braiding.
IJ's very first case in 1991 when it was founded
was on behalf of braiders in Washington, DC.
They were required to get a full cosmologist license
just to braid hair.
And whenever you get a cosmologist license,
you usually don't learn how to braid.
You're learning how to cut and use chemicals
and do all sorts of things that braiders don't do.
And so it was an absolutely useless credential for them.
We had that case in DC where we sued
and then they changed the law, which was great.
In the Georgia lactation case,
what were the constitutional issues
related to economic liberty
and pursuing your occupation without government interference?
So the decision in Georgia was under the state's constitution.
Georgia's constitution protects the right
to earn a living without unreasonable interference
from the government under its due process clause.
And so that was the claim that we brought
in state court in Georgia
because state constitutions often provide more protection
for economic liberty than the federal constitution.
So it can be easier to win these cases at the state level
because state judges are much more concerned
about their own constitutions,
special protections for economic liberty
than unfortunately federal judges are most of the time.
And why is that?
I think that state judges are more interested
in protecting individual rights
under their state constitutions
because it's important to them to pay attention
to how their state is unique.
And so you have a lot of case law in various states
that push back against those fringes of government power
that you were talking about earlier.
And often it is where people are making a living
in these ordinary occupations like lactation consulting.
And in Georgia, there are a lot of cases
about striking down plumbing licensing.
And they actually tried to license photographers in Georgia,
which is crazy.
And that was struck down under Georgia's due process clause.
IJ has had success in state courts in Pennsylvania
in Texas as well.
Both of their state constitutions have been found
to provide greater protection for economic liberty
than the federal constitution.
In the Georgia plumbing cases,
the law required licensing for plumbers working
on new construction but not existing buildings.
And the court view that as arbitrary and shut it down.
Tell us about that.
Often laws that aren't really connected to health
and safety have these problematic exemptions.
That's kind of a symptom of an underlying problem.
And that's something that the justices
in the lactation consultants case pointed out.
If a law is not really connected to the public health
and safety, it's going to be like Swiss cheese.
There are going to be all of these holes and exemptions
for people to get through because at root,
there's no pressing health and safety concerns.
And so you can exempt people without a problem.
So for example, in the lactation consultants case,
you didn't have to get a license as long
as you did the work for free,
as long as you weren't getting paid for it.
If you worked for the government,
you didn't have to get a license.
If you were a doctor or a nurse,
you didn't have to get a license.
Even if you had no training in helping breastfeeding moms.
And so the court pointed out,
if there are that many exemptions,
you've got to think, is there really
the public health and safety concern
that would merit such a restrictive license?
The federal constitution incorporates the 14th amendment,
which has been construed in the locker decision
to give individuals economic liberty
as always to employment.
Lockner was then later overturned
and now the government has much broader authority
to regulate your occupation.
Does the federal constitution protect economic liberty
after the repeal of a lockner?
So lockner is kind of the favorite boogie man
of federal judges whenever they're saying,
we need to defer to the government
because we don't want to be like lockner.
That's just one of the most reviled cases.
And if you look at the facts in lockner,
it was a case about bakers
and how many hours they could work.
Bakers who were immigrants were willing to work
very long hours to support their family.
They were trying to earn a living,
but the existing bakers weren't happy with the competition.
So you have a law that it really was protectionist,
but the court was trying to say
that there were health and safety concerns.
And so now federal judges always point to lockner
when they say, oh, the court can get out of control
with protecting economic liberty.
But state judges usually aren't
so afraid of lockner because they
don't feel bound to what federal judges
said in the 1930s about economic liberty.
And they can look to their own state constitutions
and their own case law that provide similar protections
to lockner, but they don't feel bound to reject it.
How do federal judges view economic liberty
and constitutional protections in a post-lockner world?
Unfortunately, they don't like it.
We've had less success in federal court
than we have had in state court.
A very recent example, one of my cases,
was Washington DC again, requires a college degree
for daycare providers, a regulation
that was enacted by an administrative agency in 2016.
And they said, now to be a daycare provider in DC
and care for babies, infant zero to three,
you had to have an associate's degree.
And my client, Alumi Sanchez, is an immigrant.
And she moved to the US in the 90s
and decided to pursue her dream of caring for children.
And she's had a home daycare since 2006.
And she has a college degree, but it's
from her home country of the Dominican Republic.
And it's not in early childhood studies.
So she didn't qualify under these new regulations,
even though she is an amazing daycare provider.
So we teamed up with her and we sued.
And after five years in court and two appeals,
we lost that one in federal court.
My niece is a high school student, and she babysits.
Does she really get a college degree to babysit?
Babiesitters were exempt from DC's regulation.
So there again, you've got an exemption to a law.
I think it's fine to license daycares.
But you have to look at what the regulation requires,
which was a college degree.
And you have to say, is there a real connection
between the provider having a college degree
and those kids being safe and happy?
Do you think that lawyers need to be licensed?
So I have absolutely no interest in protecting
my own cartel from competition.
I think that there are a lot of things that lawyers do
that can be done by ordinary people.
A lot of it is just helping people fill out forms.
And the majority of what I do is just speech.
With lawyer licensing, there is a great deal of things
that ordinary people can do without even going to law school.
I'm not afraid to say that lawyer licensing is up for grabs.
What do judges think about these economic liberty cases?
Back when we were founded in 1991,
we were often laughed out of court
when we went in and tried to litigate economic liberty cases.
But if you flash forward to now,
there has been a lot of success.
It's obviously taken 30 years,
but people's attitude is different.
And that includes judges, that includes legislators,
and the general public.
And IJ, we don't just litigate cases in the court of law,
we litigate them in the court of public opinion.
So we have a communications team.
We have a strategic research team
that does research to find facts,
to back up the things that we say whenever we go into court.
And we have a legislative team
that crafts model legislation
and hopes that legislatures will enact it.
And we've had success on all fronts.
And I think that our big wins,
like in the lactation consultants case,
like in the Patel case in Texas,
all contribute to that.
And it's like a giant snowball
that we hope will just keep going and going
and bring people more economic liberty.
Tell us about the Patel case.
This involved eyebrow threaters,
people who use the cotton thread
to remove unwanted hair from your eyebrows.
So a very simple thing.
It's an ancient Middle Eastern art.
So a lot of immigrants do that.
And Texas wanted them to get a full aesthetician's license.
So that would involve learning how to wax,
maybe even give massages.
I can't remember, but it was just mostly
vastly irrelevant to what they do.
And so we challenged that on behalf of a threater.
And that case probably took five years.
And we won in the Texas Supreme Court.
And they said that when you challenge
an economic regulation in Texas,
the review is meaningful.
A judge is actually going to look
at the real reasons behind the law
and about whether it's protecting the health and safety.
And in this case, they said that it's not.
It's too burdensome to require a threater
to get hundreds of hours of training
and spend thousands of dollars
to do something that they already know how to do.
Let's change topics of civil forfeiture.
Civil forfeiture is a huge problem all across the country.
And the government can actually take your money
without even charging you with a crime.
You don't have to be charged.
You don't have to have done anything wrong
or even contemplated doing anything wrong.
And they can take your cash just because you have it.
And the reason why is because they have a profit incentive.
They get to keep part or maybe even all of what they seize.
And so naturally, that's going to lead to seizing more cash.
And it's happened to ordinary Americans
carrying cash for whatever reason.
A lot of the times, some of our clients have been buying trucks.
And that's often a business where you go somewhere
and you hand them cash.
And they've had their money seized.
And this is sometimes people's life savings.
There was another case where there was a woman
who was going to build a medical clinic in Nigeria.
And she had her money seized.
She was a nurse.
And that was both her savings and money
that people had given her to start the clinic.
There was a guy who was a member of a band.
And he was an immigrant from Asia
and raising money and collecting charity
to build an orphanage.
So you've got these ridiculous situations
where the government has just taken someone's property
when they've done nothing wrong.
Winning lawsuits is only part of the solution.
I suspect you need to embarrass senior government officials
to change behavior.
You sued the feds because they seized a motel,
owned by an innocent Indian immigrant
after a random drug deal went down in one of the motel rooms.
And after you won the lawsuit, you
as a charity general, Eric Holder,
changed the policy on seizing innocent party's property
because of the public outcry.
Unfortunately, the reforms that you're talking about
were quite modest.
That was about the federal equitable sharing program.
And that's a program where even when state law enforcement
seizes assets with civil forfeiture,
they can share it with federal agents.
Because in a lot of states, they'll
have stricter civil forfeiture laws.
So it's harder to seize property from people
without convicting them of a crime.
But they can get around those stricter laws
by using the federal equitable sharing program.
And that was what Holder made very modest reforms to.
And it left intact the majority of the program.
But fortunately, there is a bill pending in Congress right now
that could actually make some real reforms
to civil forfeiture at the federal level.
And IJ has been involved with that for a long time.
It only gets so far every year, but I think this year,
it's gotten further than it's ever gotten before.
And it has bipartisan support.
So hopefully, after IJ has pushed for years and years
through communications, through litigation,
through legislation, we might actually
see some real reform.
You work for a public interest law firm.
What does that mean?
So public interest law is bringing strategic cases
to further that mission.
So you're being choosy about the issues
and the clients you work with.
And in the case of the Institute for Justice,
our mission is to increase freedom in the areas that we work in.
We're a nonprofit, and we represent our clients for free.
And we look for those special types of clients.
Other public interest firms, the ACLU, the NAACP,
they both have missions that they're
furthering through their litigation
in the court of public opinion through legislation.
Do you sometimes find that you win by losing?
Absolutely.
That's the Kilo versus New London case.
In many ways, a heartbreaking loss for IJ,
because we had this entire neighborhood
that was going to be taken by a minute domain
for building condos and shopping
and everything for the people who are going to work at Pfizer.
So taking property and handing it over
to a private entity for private use,
whereas a minute domain is meant to take property
and use it for a public use, like a road or a park
or a hospital or something like that.
But in this case, the US Supreme Court
said actually it's OK for the government
to take property and hand it over to a private entity
for a private use.
In 2005, we lost that case.
But we immediately turned around and said, how can we use this?
And we said, this has happened, but at the state level,
you don't have to tolerate this, states.
You can change your laws and prevent
this from happening in your own states.
And so the reaction was huge.
And everybody was up in arms about it.
And so the vast majority of states
reformed their eminent domain laws as a result of Kilo.
And so at this point, it's pretty rare
that you get a case like Kilo.
We sort of won so much that those cases
are vanishingly rare.
And that's a great thing.
Hi, Andy Chepisode.
I'm a note of optimism, Renee.
What are you at Mystic about as are
awaits to economic liberty?
I'm optimistic about bringing economic liberty
claims under state constitutions.
I think that there are a lot of judges
who are out there looking at their state constitution
and eager for these cases to come before them.
And so I'm optimistic that we'll be
able to find those opportunities and bring those cases and win.
Thanks to Gary and Renee for joining us today.
If you missed last week's show, check it out.
The topic was, Asians get to attend Harvard.
Our speaker was Rick Banks, who is the Jackson Eli Reynolds
Professor of Law at Stanford Law School
and the co-founder and faculty director of the Stanford
Center for Gratial Justice.
You may recall that Rick was previously
the co-host for this podcast, what happens next,
along with me during the most of 2020.
Rick discussed the Supreme Court decision
in the students for fair and mischievous cases
against Harvard and the University of North Carolina.
I now want to make a plug for next week's podcast
with Thomas Bologna, who is Professor of Management
at MIT Sloan School and is the director of the MIT Center
for Collective Intelligence.
Tom is the author of the book, Superminds,
the surprising power of people and computers thinking together.
AI is obviously a big topic right now.
And I want to learn from Tom about how
we will interact with AI-based algorithms
to become a supermind using the best
of humans can do with the awesome computing power
of the most advanced computers working together.
You can find our podcast and previous episodes
and transcripts on our website, what happens next
in six minutes.com.
Please subscribe to our weekly emails
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Thank you very much for joining me.
Goodbye.