Since IJ opened its doors, we have been at the forefront of protecting economic liberty, the right to earn a living free from unreasonable government interference. Indeed, our very first clients were a couple from Washington, D.C., who were practicing African hair braiding without an expensive and irrelevant cosmetology license. Since that time, we have secured over 220 victories for entrepreneurs and established legal precedent that most lawyers and legal scholars thought impossible in light of New Deal jurisprudence.
More than 30 years later, we continue to represent small businesses nationwide in court—from a mapper in California to an eyelash extension technician in Oklahoma to a U-Haul operation in South Carolina—while our clinic at the University of Chicago champions local entrepreneurs through its exciting annual South Side Pitch competition. And in November IJ’s strategic research team launched the third edition of License to Work, the go-to guide and definitive resource on occupational licensing laws. This latest offering contains the most comprehensive data yet and demonstrates the enormous negative impact unjust licensing laws have on the ability to work.
While we have worked a sea change in attitudes toward economic liberty, this pillar of IJ’s mission remains one of our most challenging on the litigation side. In most courts, we are bedeviled by the rational basis test, a made-up test employed by courts whereby certain rights get strong protection while others, such as economic liberty, receive a much lower standard of review. Amazingly, IJ has racked up wins in federal and state courts even under this overly deferential standard.
But that’s not always the case. Unfortunately, there is longstanding confusion in the law over whether the 14th Amendment guarantees meaningful judicial review of the right to earn a living.
Take the case of Nepali immigrant entrepreneurs, and IJ clients, Dipendra Tiwari and Kishor Sapkota. Pursuant to its “certificate of need” law, Kentucky stopped them from opening a home health care business after hospital conglomerates opposed their application. The Sixth U.S. Circuit Court of Appeals upheld Kentucky’s CON law, presenting an opportunity for the U.S. Supreme Court to clear up the confusion. In fact, despite ruling against us, one 6th Circuit judge essentially invited the Supreme Court to hear Dipendra and Kishor’s case, noting that “many thoughtful commentators, scholars, and judges have shown that the current deferential approach to economic regulations may amount to an overcorrection.”
In the wake of the Court overturning Roe v. Wade this past summer, a majority of the justices are now focused on whether a so-called unenumerated right is “deeply rooted in this Nation’s history and tradition.” Thankfully, the right to engage in a common occupation—economic liberty—is enmeshed in American history and thus worthy, we argue, of protection by the courts.
Unfortunately, the high court declined to take Dipendra and Kishor’s case, but IJ will continue to press our arguments that the right to earn a living must be protected under the U.S. Constitution and the constitutions of every state. In December, we asked the Supreme Court to hear our case against Washington, D.C., over misguided—and unconstitutional—regulations that are forcing day care providers in the nation’s capital to go to college in order to care for small children.
When IJ started, very few people were discussing economic liberty, and virtually no one was litigating it. Now recognition is widespread, and other organizations and attorneys bring cases that seek to tear down barriers to work. But IJ remains the unquestioned leader as we use all the tools at our disposal to advance the interests of small entrepreneurs.
Scott Bullock is IJ’s president and general counsel.
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