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View Full Version : Federal Judge to Texas: No, You Can't Force People to Do Useless Things




Suzanimal
01-09-2015, 09:11 AM
The state of Texas told Isis Brantley that she needed to spend thousands of hours taking useless classes and thousands of dollars on useless equipment before she would be permitted to teach hairbraiding at her own school. On Wednesday Judge Sam Sparks told Texas that that was unconstitutional, in a momentous decision that shows what judicial engagement can do for entrepreneurs everywhere.

Isis is an expert African hairbraider with decades of experience teaching everyone from out-of-work women seeking a new skill to state-licensed cosmetologists interested in learning the art of African hairbraiding. On June 25, 2013, the Texas Department of Licensing and Regulation notified Isis that, in order to teach hairbraiding at her own school, she must first become a state-licensed barber instructor, a process that takes months and costs thousands of dollars. The requirements include completing a 1,500-hour curriculum that is wholly irrelevant to African hairbraiding. Would-be barber schools also must comply with a number of facility and equipment requirements that would cost over $20,000. The Institute for Justice joined with Isis to file suit in the Western District of Texas, contending that the Texas scheme violated the Fourteenth Amendment, which guarantees every American the right to earn an honest living, free of arbitrary interference.

The government apparently hoped that Judge Sparks would do what judges all too often do when they apply the so-called "rational-basis test," the default rule in constitutional cases that do not involve rights that the Supreme Court has labeled "fundamental," like speech, religion, voting and privacy. Judges in rational-basis cases routinely abandon their constitutional duty to seek truth and instead work to rationalize the government's actions. In seeking to defend the challenged provisions, the government admitted that the provisions "may not be sensible or particularly well crafted" but argued that those who drafted them "could have believed that they furthered legitimate interests in public health and safety," even if they actually did not. The government invoked Williamson v. Lee Optical (1955), a case in which the Supreme Court upheld a law barring people who were not licensed optometrists or opthalmologists from replacing broken lenses and preventing out-of-state eyeglass retailers from advertising -- in the name of public health and safety, of course.

Fortunately for Isis (and unlike the Supreme Court in Lee Optical), Judge Sparks engaged in a genuine search for the truth, focusing on real evidence rather than hypotheticals to justify the government's actions. Judge Sparks followed the lead of the Fifth Circuit in St. Joseph Abbey v. Castile, another case litigated by IJ. In St. Joseph Abbey, the Fifth Circuit struck down a Louisiana regulatory scheme targeting casket sales, rejecting Louisiana's "nonsensical explanations" for the scheme after finding them to be factually baseless.

After carefully considering Texas' hairbraiding scheme, Judge Sparks determined that it did not plausibly further any of the state's alleged interests. He determined, for instance, that it made no sense for a braiding salon to be forced to install a minimum of five sinks when washing hair is not involved in the braiding process and may not legally be performed by a braider. He further noted that although Texas' scheme explicitly contemplates the existence of braiding schools that teach solely the 35-hour curriculum that the state requires of all braiders, the state could not find a single braiding school that was able to meet its onerous requirements. What sense does it make to apply a regulatory scheme to hairbraiding schools that makes it impossible for them to even enter the market -- unless, of course, you are trying to protect barber schools from competition from hairbraiding schools? Tellingly, Texas was perfectly willing to allow Isis to work for an existing barber school and teach hairbraiding for them.

If our constitutional rights are to be secure from arbitrary interference, judges cannot reflexively defer to the government. They must engage in a genuine search for the truth, scrutinizing the record carefully to determine whether the government's actions plausibly serve truly public-oriented ends. Unfortunately, the Supreme Court has given the government a free pass in rational-basis cases like Lee Optical, and lower courts have followed its lead. But nothing less will suffice to protect the liberty of ordinary Americans like Isis who are striving to realize their entrepreneurial dreams. We need truth-seeking judicial engagement in every case to set them free.

http://www.huffingtonpost.com/evan-bernick/federal-judge-to-texas-no_b_6438300.html

acptulsa
01-09-2015, 09:17 AM
HuffPo never met an overregulation it didn't like--until it discovered a stupid regulation passed in Austin, Texas.

Meanwhile, the Supreme Court seems not to have gotten the memo that Isis is the new boogeyman.

jmdrake
01-09-2015, 09:18 AM
One small victory against statism.

Spikender
01-09-2015, 09:21 AM
One small victory against statism.

Every victory counts. Especially in the hope department; brightens my day a little, even if it feels like you're losing the war. Badly.

fisharmor
01-09-2015, 09:25 AM
the Fourteenth Amendment, which guarantees every American the right to earn an honest living, free of arbitrary interference.

Well as long as we're making shit up, let's quote the 19th Amendment, which guarantees every American the right to own a submarine, or the 22nd Amendment, which guarantees every American equal access to dog parks.

acptulsa
01-09-2015, 09:28 AM
Hope everyone takes screenshots of this before HuffPo buries it. They're applying their Texas Double Standard. It must be heartening to Texas liberals to know that, along with their myriad other problems, the rest of the nation's liberals will assume at the drop of a hat that all their overregulations are racist. It should be heartening to us to see that liberals are not only capable of seeing that overregulation is a tool of tyranny, but are willing to admit it where we can get a screenshot of it.

Working Poor
01-09-2015, 09:49 AM
We need truth-seeking judicial engagement in every case to set them free.

I agree but I think that ship has sail years ago even.

I have a degree(BA Physiology) and several certificates(alternative health modalities) but I just can't ask the government for permission to practice my arts. I use them for my self and my loved ones. I could not even stand having to pass one more the test on CEUs because in my opinion they were filled with propaganda and pure BS the same goes for the tests I had to pass and papers I had to write in order to obtain a degree. The correct answer on a test is not necessarily true IMO of course. I don't dispute most of the nuts and bolts science involved in my studies usually but there was so many little lies thrown in.

Suzanimal
01-31-2015, 06:09 AM
How Hair Braiding Explains What's Gone Wrong With America's Economy


Thanks to the growth in occupational licensing, Isis is not alone. Licensure was once imposed only on professionals like doctors and lawyers. In the early 1950s, less than five percent of Americans needed a license to work from the government. Recent estimates put that number as high as 30 percent, as reported in a new study conducted for the Brookings Institution’s Hamilton Project by Morris Kleiner, a professor at the University of Minnesota. Moreover, according to a wide-ranging 2012 report on licensing by the Institute for Justice, occupational licenses affect many low-income or low-skilled occupations, which in turn have a greater proportion of African-American and Hispanic workers.

Occupational licensing is typically defended as a way to protect consumers and ensure quality practitioners. But many licensing requirements are just downright baffling. In Isis’ case, Texas wanted her braiding school, the Institute for Ancestral Braiding, to have a minimum of 2,000 square feet of floor space (more than twice the size of her current facility); install at least 10 barber chairs, (even though braiders don’t cut hair); and have at least five sinks, despite the fact that “the state makes it illegal for hair braiders to provide services that require a sink.” The regulations were so strict, Texas couldn’t name a single school that taught only the natural hair-braiding curriculum and complied with the state’s barber regulations.

In 24 states, hair braiders need more training than emergency medical technicians. Completing the necessary coursework in one of these 24 states can cost upwards of $20,000 and requires up to 2,100 hours of training. By comparison, EMTs need, on average, about 140 hours for their licenses.


In those 24 states, braiders have to obtain a license in either cosmetology or hairstyling. Incredibly, cosmetology schools are generally not required to teach African-style braiding. Instead of learning how to braid, natural hair entrepreneurs must study how to give manicures and facials—skills they do not intend to use in their careers—and learn techniques, like how to bleach and perm hair, that completely contradict the natural hair movement. That makes no sense.


Like natural hair braiding, states have licensed many other lines of work, even if they hardly pose a threat to consumer welfare. Fortunetellers, florists, horse massagers, interior designers, makeup artists, shampooers and tree trimmers are all required to obtain licenses in at least one state.

Even for jobs where there can be a rationale behind licensing, licensure burdens vary drastically from state to state. For instance, manicurists need a license in every state except Connecticut. But the amount of training needed to get that license ranges from a mere three days in Alaska to 163 days in Alabama. The same goes for pest control applicators, which are licensed in all 50 states and Washington, D.C. This license to kill (pests and vermin) takes only $25 and one exam in California and Kentucky, and requires no additional training. But in Tennessee, pest control applicators must have four years of experience and sit for two exams.


https://www.youtube.com/watch?v=Jr8qHv4hCVw

Instead of protecting the public, occupational licensing protects established businesses from competition. That can net a tidy sum. Licensure can raise wages for the licensed by up to 15 percent, according to research by Morris Kleiner and Alan Krueger, a professor at Princeton University and former chair of President Barack Obama’s Council of Economic Advisers. Kleiner estimates that “the restrictions from occupational licensing can result in up to 2.85 million fewer jobs nationwide, with an annual cost to consumers of $203 billion,” based on work he did with Krueger and Alexandre Mas.

Given its detrimental impact on the economy, licensing is a top concern for many entrepreneurs. Thumbtack.com, in partnership with the Ewing Marion Kauffman Foundation, surveyed over 12,000 small business owners in 38 states and 82 metropolitan regions to determine how friendly cities and states are towards small businesses. Licensing was “the most important regulatory issue” and “second only to the strength of the local economy in determining how friendly a state is to small business.”

Since many licenses to work are an enormous and unnecessary burden, paring them back or eliminating licenses altogether would be a huge win for economic growth and common sense. Braiding laws in some states demonstrate this more reasonable approach to regulation. In Oregon, the state regulated braiders as barbers, which required 1,700 hours of training. But in 2013, the state eased restrictions on natural hair. Now braiders only have to read a PowerPoint presentation on health and sanitation and take a written exam.

Eleven states go further and don’t license braiders at all. In two of them, Kansas and Mississippi, braiders need only to take a “self-test,” where they read a brochure on infection control and test themselves. Since Mississippi deregulated braiding, about 1,000 natural hair entrepreneurs have registered in the Magnolia State.

Fortunately, momentum is growing to roll back occupational licensure. Governors in Iowa and Indiana have recently vetoed bills that would have created even more licenses. Through litigation and grassroots activism, the Institute for Justice has challenged licenses to work across the nation in courtrooms, city halls and state capitols. IJ even published an Entrepreneurs’ Survival Guide to help small business owners fight back against red tape.


...

http://www.forbes.com/sites/instituteforjustice/2015/01/29/hair-braiding-and-occupational-licensing/3/

Ender
01-31-2015, 08:26 AM
Every victory counts. Especially in the hope department; brightens my day a little, even if it feels like you're losing the war. Badly.

Agree.

The license was originally for things that would otherwise be illegal- such as transporting goods across borders. Now it is in everything from marriage to the process of hair-braiding.

Time for everyone to:

WAKE UP.

PaulConventionWV
01-31-2015, 03:40 PM
Isis is a rather unfortunate name for this day and age in America. Especially, I imagine, in Texas.