Mark Pulliam Sep. 28, 2016, 11:05am


This column first appeared Sept. 28 on Library of Law and Liberty.

The Texas Supreme Court’s 2015 decision in Patel v. Texas Department of Licensing and Regulation, striking down a state law requiring at least 750 hours of training in order to perform commercial “eyebrow threading”—a form of hair removal mainly performed in South Asian and Middle Eastern communities—has generated substantial notoriety for the court and for the Institute for Justice, which brought the lawsuit challenging the law.

Patel drew notice from libertarian legal scholars for “reinvigorating ‘substantive due process,’” and “rejecting the Lochner bogeyman.” Reason’s Damon Root called Justice Don Willett’s concurring opinion “the most libertarian legal opinion ever written.” And University of Tennessee law professor Glenn Harlan Reynolds, proprietor of the Instapundit website, lauded the Institute for Justice in USA Today for its work challenging excessive occupational licensing regulations.

My present inquiry is simply whether the various opinions in Patel are sound from a doctrinal or “originalist” perspective—did the court correctly apply the relevant law?

IJ’s lawsuit framed the issue as whether the licensing requirement violated Article I, section 19 of the 1876 Texas Constitution, which states that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disenfranchised, except by the due course of the law of the land.”

The record showed that the 750 hours of training—supposedly required to protect public health and safety—included only 25 hours devoted to “hair removal,” none regarding threading, and 40 hours relating to sanitation, safety, and first aid. The state of Texas, defending the law, conceded that 320 of the curriculum hours are wholly unrelated to activities threaders actually perform.

Interestingly, the training required to gain a license to apply eyelash extensions—a specialty involving the use of chemicals and a high rate of adverse reactions—totals to 320 hours. For Emergency Medical Technicians—paramedics—the total is 140 hours. The law, in other words, was a classic example of regulatory overkill, combined with protecting existing licensees from competition.

Overruling the trial court and the Third Court of Appeals, which upheld the law under the prevailing “rational-basis” test, the all-Republican Texas Supreme Court applied a more rigorous standard of review—which it called “substantive due process”—to strike down the law as “so unreasonably burdensome that it becomes oppressive in relation to the underlying governmental interest.” The court split 6 to 3 on the result, but issued five separate opinions.

Five justices joined the majority opinion authored by Justice Phil Johnson, which interpreted Article I, section 19—an amalgam of language derived from previous iterations of the state’s frequently revised constitution—to have more or less the same meaning as the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. Johnson’s opinion explained that, whereas the Texas Supreme Court will generally follow the U.S. Supreme Court precedents interpreting the Due Process Clause (that is, with use of the rational-basis test), the state court will henceforth apply a more rigorous—which is to say a more Lochner-like—standard when considering as-applied challenges to economic regulation statutes.

The majority offered two reasons for this holding:

1) The state’s adoption of the phrase “privileges or immunities” in Article I, section 19 soon after the U.S. Supreme Court interpreted the same phrase from the Fourteenth Amendment in the Slaughter-House Cases (1873) connotes an intent to protect certain individual rights from state interference.

2) Prior to and during the so-called Lochner era (1905 to 1937), Texas courts had sometimes applied a type of substantive due process to nullify unreasonable laws. While Johnson cited no authority supporting the “oppressive” standard for reviewing economic regulations, he claimed that Texas courts had been applying some form of substantive due process “for over one hundred and twenty-five years.”

Justice Don Willett wrote a separate, 52-page concurring opinion that was joined by two other justices (all three joined in Johnson’s 36-page majority opinion). It is an eloquent—and scholarly—paean to economic liberty, Lochner-era jurisprudence, and limited government, and a thorough indictment of excessive occupational licensing from a historical, philosophical, and economic perspective. Willett’s erudite opinion is a pleasure to read, and while all Texas legislators and regulators should read (and heed) it, it adds little to the substance of the majority’s analysis of Article I, section 19.

Justice Jeff Boyd wrote a short (five-page) concurring opinion explaining that, although he joined the majority’s result, he did not fully agree with Johnson’s reasoning. Specifically, Boyd disagreed with the majority’s adoption of a “new” substantive due process standard, believing that the 750-hour training requirement to pluck eyebrows has no rational relationship to a legitimate governmental interest. In other words, Boyd concluded the law was invalid under the prevailing rational-basis test.

Chief Justice Nathan Hecht dissented, joined by Justices Jeff Brown and Eva Guzman. As stated in my prior post, Hecht slammed the majority for exceeding its proper judicial role and unleashing the “Lochner monster.” Dismissing Willett’s opinion as a verbose “rhetorical torrent” and a “wild championing of economic liberty,” Hecht correctly pointed out that

While substantive due process has been the subject of many cases and much study since Lochner, the Court cannot find a Texas case, a case from an American jurisdiction, or a scholarly treatise or article to cite in support of its “oppressive” test.

The “obvious reason,” Hecht argued, “is that it is no standard at all. Oppression is very much in the eye of the beholder.”

Hecht noted that Texas’s cosmetology licensing scheme, in effect for 80 years, is found in 10 other states, and has regulated hair removal since 1971. (Texas has regulated barbering since 1907.) Hecht warned that substantive due process leads ineluctably to liberal judicial activism in other areas, such as the regulation of abortion and marriage.

To Hecht, the number of hours of required training is purely a policy matter for the legislature to decide:

Whether eyebrow threaders need 750 hours’ training, or only 430, or 40, or 1, to practice their trade on the public is not for us to say, as long as the Legislature, whose job it is to say, is making a rational effort to protect public health and safety.

This supine conception of the judicial role accepts the most extreme version of the rational-basis standard, exemplified by Justice William Douglas’ opinion in Williamson v. Lee Optical Co. (1955)[1], the apogee of post-New Deal judicial abdication in the sphere of economic regulation, and ignores more recent applications, such as the decision handed down in 1985 in City of Cleburne v. Cleburne Living Center, Inc.[2]

What about the majority’s claim that there is a century-long tradition of substantive due process in the Lone Star State? Hecht insisted that, despite some equivocation in the past, in modern times the Texas Supreme Court has been deferential to the exercise of the state’s police power and “[f]or the past 20 years, we have consistently adhered to the rational basis test.”

Guzman filed a separate (solo) dissent, reiterating her belief that the majority was legislating from the bench, and articulating an unworkable standard to boot. Even though she disagreed with the 750-hour requirement, she noted that “I am not a legislator; I am a judge.”

Who in Patel is right? I leave aside the larger issue of whether Lochner was correctly decided or properly overruled (although I am on record as believing—contra Holmes’ dissent—that the Constitution did enact something close to Herbert Spencer’s Social Statics). From an originalist standpoint, the question is whether the text or the original understanding of Article I, section 19 of the 1876 Texas Constitution embodies the meaning ascribed to it by the majority in Patel. In my judgment, it does not.

Johnson’s opinion is not particularly persuasive in this regard, especially as to the pre-Lochner decisions of the Texas Supreme Court, which was a fractious and rough-hewn body—overworked, understaffed, and underpaid—prior to the 20th century. The “leading” decision cited by Johnson, the frontier-era Milliken v. City Council of Weatherford (1881), had nothing to do with occupational licensure or substantive due process. In Texas’ “wild west” days, Milliken struck down a city ordinance that made it a crime to provide lodging to prostitutes. The court said the city was free to outlaw prostitution but could not “proscribe [prostitutes] as a class, as to make it a penal offense in any one to rent them a habitation without regard to its use.” (So much for the “right to earn a living.”)

Similarly, the sketchy record of the 1875 constitutional convention, which was dominated by farmers who belonged to the Texas State Grange, is bare of any intention on the part of the drafters of Article I, section 19 to adopt the reasoning of the Slaughter-House Cases. And if Article I, section 19 was intended to protect individual rights from unwarranted majoritarian interference, why limit the new substantive due process doctrine to economic regulation? The majority opinion in Patel proves both too much and too little.

Many of the arguments in Hecht’s dissent are doctrinally sound, but his anti-Lochner rhetoric is overblown. Hecht’s focus should have been on the original meaning of Article I, section 19. And, even though the majority was inventing a new doctrine of substantive due process, Hecht’s (and Guzman’s) view that judges are helpless ever to question the policy determinations of the legislature conceives an overly passive role for the judiciary. The rational-basis test does not eliminate judicial review. At some point, excessive economic regulation crosses the constitutional line, even under the rational-basis test.

For example, in another case recently litigated by IJ, St. Joseph Abbey v. Castille,[3] the U.S. Court of Appeals for the Fifth Circuit, applying the rational-basis test, struck down a state regulatory scheme that prevented a group of monks from selling hand-made wooden caskets because the monks were not licensed funeral directors. Judge Higginbotham’s opinion stated that “mere economic protection of a particular industry”—which, frankly, is the goal of much occupational regulation—is not a legitimate governmental purpose, and judicial deference does not “require courts to accept nonsensical explanations for regulation.” The Fifth Circuit denied that it was invoking “the ghost of Lochner”: “We insist only that Louisiana’s regulation not be irrational.”

In light of the evidence in the Patel record—and especially the state’s stunning concession that over 40 percent of the esthetician’s training (320 out of 750 hours) is unnecessary for eyebrow threading—the most compelling opinion is the concurrence by Justice Boyd. While agreeing with Hecht that the majority’s “oppressive” standard is too loose to be workable, Boyd disagreed that the rational-basis test forces the court to rubber-stamp foolish laws that make no sense. Boyd stated that “requiring eyebrow threaders to obtain an esthetician’s license is neither necessary nor reasonable. Requiring them to obtain training in sanitation and safety is rational, but requiring them to get an esthetician’s license is not.” (Emphasis added.)

Boyd parried Hecht and Guzman by noting that, “Under the dissenting Justices’ approach, if the Legislature decided to require eyebrow threaders to obtain a medical license, we would have to uphold that decision,” a self-evident absurdity. Courts can and should decide that plucking eyebrows does not require an MD degree or 750 hours of training. Boyd’s approach is a sensible application of the rational-basis test, similar to the Fifth Circuit’s analysis in St. Joseph Abbey.

Under Boyd’s reasoning, the court in Patel could have overturned the 750-hour requirement as applied to eyebrow threaders under existing law, without opening the Pandora’s Box of substantive due process under the state constitution. Such a conventional analysis would have produced the same result, but attracted much less attention from admiring commentators. (As the former New York Times Supreme Court correspondent Linda Greenhouse learned long ago, a little flattery goes a long way in ego-rich appellate chambers.)

My verdict: Economic liberties are good; unnecessary and excessive occupational licensure regulation is bad; the end result of Patel—achieved after six years of litigation!—is correct; fidelity to originalism is critical, in state and federal courts alike, to prevent judges from exceeding their proper role; and Article I, section 19 of the Texas Constitution is not the appropriate vehicle for resurrecting Lochner (which David Bernstein and others have made great strides in rehabilitating).

IJ deserves credit for fighting unreasonable occupational licensure, in Texas and elsewhere. In many cases, such regulatory schemes represent nothing more than barriers to entry into the market that protect existing participants from competition, and that harm consumers in the process. Legislators should not enact naked restraints on competition, interfering with citizens’ right to engage in productive economic activity. However, when such laws are passed, and lack any legitimate purpose under the police power, courts should strike them down.

[1] 348 U.S. 483 (1955).

[2] 473 U.S. 432 (1985).

[3] 712 F.3d 215 (5th Cir.), cert. denied, 134 S. Ct. 423 (2013).

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