“It’s the city’s job to make sure that we’re all able to pursue our happiness,” Bennett says. “But it’s also their job to make sure that we don’t do it to the extent where we hurt people around us. We all grew up as Americans knowing that to be American means, ‘I’m free to do whatever I want to do.’ But then you got into ...college and you found out that the second half of that sentence was, ‘I’m free to do whatever I want to do – unless it infringes on someone else’s freedom to do what they want to do.’ ”
American or not, the institute invoked the 14th Amendment in the El Paso case. The institute has used the same constitutional arguments in cases that wander far from the world of street vending, too. The firm has summoned the power of the 14th Amendment to protect African hair braiders (which led the D.C. Council to repeal a law requiring hair braiders to obtain a pricey cosmetology license), Las Vegas limousine drivers and even Benedictine monks who were prohibited from selling wooden caskets in Louisiana because they were not licensed funeral directors.
That last case, strangely enough, could be a flashpoint for Gall and his team. The monks, Gall notes, won their case in federal court, but the Louisiana State Board of Embalmers and Funeral Directors has appealed, which could eventually lead to a Supreme Court showdown. The nation’s highest court might hear the case, Gall believes, because lower courts have issued differing opinions on whether economic protectionism is a legitimate government interest. Should the Supreme Court rule in the monks’ favor, a precedent could be set for all future cases in which cities try to curb competition through legislation.
Officials with the D.C. Department of Consumer and Regulatory Affairs are well aware of the Institute for Justice’s work, both past and present. Helder Gil, the department’s legislative affairs specialist, says there are many reasons why the new vending regulations continue to be stuck in neutral. For starters, he notes, officials have had to slog through more than 2,500 public comments, possibly the most ever for a set of proposed regulations.
The DCRA acknowledges that the new regulations, whenever passed by the council, will be reviewed mercilessly by all sides: vendors, restaurateurs, Business Improvement District officials, the Institute for Justice, whoever, all looking for reasons to cry foul. “It pays to be deliberate in these circumstances,” says Samuel Williams, the DCRA’s administrative officer. “We know there’s plenty of other folks out there who [will review] what we’re going to propose with a fine-toothed comb. Any verbiage that they don’t agree with or want to challenge, it’s got to be defensible from our standpoint.”