*1 PATEL, Satani, Anverali Nazira Ashish
Momin, Chamadia, Vijay Minaz Yogi,
Lakshmi Petitioners/Cross-Re
spondents, DEPARTMENT
TEXAS OF LICENS al., REGULATION, AND et
ING
Respondents/Cross-Petitioners
NO. 12-0657
Supreme Court of Texas.
Argued February
OPINION June DELIVERED: *4 Miller, Background Wesley R. I. Panju, Arif Matthew Bellevue, Justice, WA, Hottot, Institute for Eyebrow threading is grooming prac- for Petitioners. mainly performed in South tice Asian and Eastern It Middle communities. involves Mitchell, General, Jonathan F. Solicitor eyebrow the removal of hair shaping Abbott, General, Greg Attorney Daniel W. eyebrows with cotton thread. “Thread- Attorney First Asst. Gen- Hodge, Tekstar it ing,” known, commonly most eral, Howell, Joy Dustin Mark Amanda increasingly practiced in Texas on a com- Juren, McCall, Nancy K. Office Cochran- basis. tightly mercial Threaders wind General, Austin, Attorney for Re- thread, single loop cotton form strand spondents. fingers, tighten it loop, Harris, James B. Phil- Richard Barrett quickly then along brush the thread Dallas, Jr., LLP, Thompson Knight & lips client, trapping skin unwanted Houston Termi- for Amicus Curiae Belt & loop hair removing it. Railway Co., nal BNSF. threading commercial regulated became when Legislature categorized CA, Breemer, Sacramento, J. David See practice “cosmetology.” as a Tex. Legal Amicus Pacific Foundation. Curiae *5 (“ ‘[Cjosmetolo- 1602.002(a)(8) § Occ. Code Houston, gy’ Rhodes, practice means the or ‘Rocky' performing C. W. for perform'for to offering compensation ... College Amicus Curiae Texas South superfluous hair a [the] remov[al] [of] from Law. body person’s using depilatories, prepara- tions, tweezing techniques_”). That opinion Justice Johnson delivered the categorization and its effects underlie this Court, Green, in which Justice Justice case. Willett, Lehrmann, Justice and Justice joined. Devine legally practice In to cosmetology order person Texas a gen must hold either a In declaratory judgment this sev- action or, operator’s eral license' in certain in eye- individuals practicing eral commercial stances, a more but limited easier-to-ob threading and the salon em- brow owners tain esthetician license. 1602.251(a). § that, them ploying applied assert as Licensing requirements for general opera them, licensing regu- Texas’s statutes and completing tors include a minimum lations violate the Texas due Constitution’s 1,500 hours instruction in a licensed course of provision. They law claim that beauty passing culture school and a state- most of the hours of training Texas Id: 1602.254; § test. mandated 16 Tex. requires for practice a license to commer- 83.20(a). § Requirements Code Admin. eyebrow threading cial are not related an completing esthetician license include what safety health and actual- threaders of 750 hours minimum of instruction in an do. The ly State concedes that over 40% approved training program and passing unrelated, required hours state-mandated test. Tex. Occ.- Code licensing maintains that the requirements 1602.257(b);' § 16 Tex. Admin. Code are nevertheless constitutional. 83.20(b). § eyebrow thread Commercial appeals The trial court and court of have at ers must least esthetician li See with agreed We cense. State. do not. We Occ. Tex. Code 1602.002(a)(8), .257; see also 16 Tex. §§ reverse remand the trial court 83.10(36). § proceedings. further Code Admin. (collectively, members Licensing the Commission’s Department The Texas State) (TDLR pursuant or' the the Uniform Declar- Department), Regulation (UDJA) Judgments atory seeking Act de- the Texas Commis- governed (the Regulation claratory injunctive relief. See Tex. Licensing and sion of .006, Commission), charged 37.001-.004, §§ with overseeing PRAc. & Rem. Code Civ. that offer cos- alleged businesses the cos- .010. Threaders individuals metology metology services. statutes and administrative rules Tex. Code Occ. 1602.001-.002, .201(a), (collec- §§ 51.051, 1603.001- pursuant issued to those statutes scheme) director of TDLR is .456. tively, cosmetology The executive were un- impose administrative fees authorized to eyebrow applied reasonable as thread- violation, $5,000 day. per per of as much as constitutional ing and violated their 51.302,1602.251. §§ See id. in the living occupation “to earn an honest gov- of one’s choice free unreasonable early TDLR in- 2008 and late They specifically ernmental interference.” spected Justringz threading business —a that, sought declaratory judgment ap- malls locations across Tex- kiosk them, cosmetology plied statutes Nazira Momin Nasruddin as—and found violate regulations priv- and associated Yogi Vijay performing eye- Lakshmi ileges and immunities and due course threading brow without TDLR licenses. I, § guarantees of Article Alleged Violations to issued Notices They sought perma- also Constitution. practice them for of cosme- the unlicensed injunction barring nent the State from en- tology. per- Minaz Chamadia was also cosmetology forcing relating scheme forming threading Justringz without eyebrow practice commercial license, was TDLR. but she cited threading against them. hearings The administrative and fines *6 pending against Yogi Momin and have for summary The moved Threaders stayed pursuant been to a 11 Agree- Rule “application judgment, contending P. 11. ment. Tex. R. Civ. See and cosmetology the state’s laws adminis- Ashish and Anverali Patel Satani own practice trative rules the commercial named Browz. threading Perfect salons eyebrow threading is unconstitutional be- any The not taken administra- State it places burdens on eye- cause senseless tive action Perfect Browz. related Sata- threading brow threaders and businesses ni is threading the sole owner another any public without actual benefit to health business, Henna. TDLR in- Browz and safety.” urged motion and that the spected investigated and Browz and Hen- constitutionally regulate State not could complaints na against on the basis filed practice eyebrow the commercial warnings it. received Although Satani two threading cosmetology as conventional un- for employing Henna unli- Browz and less could establish a real and substan- threaders, Department the not censed did relationship tial the between and statutes Alleged issue a Notice of Violation. Like regulations public’s health and the and against the Momin proceedings Yogi, and safety, and the not State could meet this prosecution of Browz and Henna has been plea both a standard. The State filed stayed parties. by agreement jurisdiction a traditional the and motion 2009, Patel, Satani, plea
In itsBy Mo- for summary judgment. December to the min, Chamadia, Yogi (collectively, jurisdiction, challenged and the the State the Threaders) TDLR, brought against standing, contending suit its Threaders’ director, Commission, sovereign by immunity executive the claims were barred test, test, appropriate doctrine. remedies under the the redundant stat- summary judgment, for its motion regulations utes and are unconstitutional that the Threaders failed to State asserted applied to the Threaders. regulation prac- Texas’s show that (1) The State contends that it is immune threading deprived eyebrow
tice of declaratory judgment claims raising due process substantive Threaders statutes; (2) challenges constitutional I, § by Article 19 or to protected justiciabili- claims lack Threaders’ both claim plead privileges and immunities (3) ty ripeness; claims barred pro- their substantive due different from (4) doctrine; the redundant remedies claim. cess standing; the business owners lack plea court denied State’s district there is no real difference between the granted its jurisdiction, to the motion for “real and substantial” and “rational rela- summary judgment, denied the concerns; tionship” process tests due summary judgment. motion Threaders’ (6) threading raises health con- appealed. Both parties cerns, implicating governmental con- valid appeals cerns, affirmed. The court Patel v. challenged thus licensing stat- Licensing Regulation, Tex. Dep’t & utes regulations that address these 2012). (Tex.App.-Austin As to S.W.3d concerns comport with the substantive due issues, jurisdictional the court State’s process requirements regardless of which suit held that Threaders’ was not applied.1 test is sovereign immunity or the re- barred turn, arguments We address the nec- doctrine, the dundant remedies Threaders essarily beginning jurisdictional with the standing, ripe. had and their claims were issues the State raises. See Rusk State merits, appeals As to the at 378-79. Black, (Tex. Hosp. v. S.W.3d court concluded that either the real under 2012) that if a (noting court have does test, basis and substantial rational jurisdiction, opinion addressing any its is- challenged State that the established cos- jurisdiction sues advisory). other than scheme, as metology applied Threaders, I, § does violate Article II. Jurisdiction Id. at 380. Immunity Sovereign A.
In
argue
this
the
that
Threaders
Sovereign immunity implicates a
(1)
governs
the
and substantial
test
real
and,
jurisdiction,
ap
trial court’s
when
process challenges
due
substantive
stat-
plies, precludes
against
suit
governmen
a
regulations affecting economic in-
utes and
entity.
Dep’t
tal
Tex.
Parks &
brought
the
terests when
challenges
of
Wildlife
Miranda,
(Tex.
v.
I,
§
S.W.3d
Article
19 of
Texas Consti-
under
the
2004); Tex.
tution;
(2)
Natural Res. Conservation
the cosmetology statutes and
IT-Davy,
Comm’n v.
applied to
S.W.3d
rules are unconstitutional as
the
(Tex.2002).
acknowledges
because
no real
The State
this
Threaders
have
Court’s
legitimate gov-
decisions
the effect that sover
substantial connection
a
objective;
eign immunity
inapplicable
if
a
even
when
suit
ernmental
ration-
challenges
al basis
is the
a
constitutionality
correct constitutional
statute
review
Co.;
Railway
College
curiae briefs have been submitted
Pacific
and South Texas
Amicus
(in
Legal
support
Foundation
Pacific
of Law 2014 State
Law Class
Constitutional
Threaders);
(not
Houston Bеlt & Terminal
support
party).
submitted
of either
Co.,
Co.,
Railway
Railway
BNSF
and Union
so,
have been
the claims should
ing
equitable
See
only
relief.
and seeks
Cit
y
offi
appropriate state
brought’ against the
M.A.L.,
226 S.W.3d
Elsa v.
capacities.
official
appeals
cials
(concluding “that
(Tex.2007)
by refusing
dismiss the
court did not err
case,
not
Threaders did
In this
in-
city] for
[against the
claims
plaintiffs’
and Commis
Department
that the
plead
vio
alleged constitutional
relief on
junctive
authority grant
officials exceeded
sion
Bouillion,
lations”);
Beaumont v.
City of
them;
rather,
they challenged the
ed
(Tex.1995) (determin
143, 149
896 S.W.2d
cosmetology stat
constitutionality of the
whose'
plaintiff
a
constitutional
ing .that
the officials
on which
regulations
utes and
sue the
may
violated
have
rights
been
proposes
their actions. The State
based
relief). But referenc
equitable
State
either
can act ultra vires
that an official
v. Re
Insurance
Department
ing Texas
inconsistently
a constitutional
acting
with
Inc.,
Services,
306 S.W.3d
conveyance
consistently-with an
by acting
Statute or
(Tex.2010),
City
El
258-59
Paso
urges that
It
unconstitutional one.
(Tex.
Heinrich,
370-72
284 S.W.3d
“acting
claims fall within
Threaders’
2009),
argues
our more re
that
the State
stat
consistently with an unconstitutional
may
that we
be
indicate
cent decisions
premise undeiiy-
category. But the
ute”
are not.
that rule. We
departing from
exception is that
ing the ultra vires
responsible
unlawful-acts
sover State is not
we
that
Heinrich
decided
Heinrich,
of officials.
284 S.W.3d
prohibit
Suits
eign immunity does
effectively im
proposal would
comply
state
The State’s
brought
require
officials
claiming a statute is
munize it from suits
statutory
provisions.
constitutional
But,
illogical
this
unconstitutional —an
extension
to fall within
were vires because Justiciability C. challenged not the claim a statute and was Next, employs the the State doctrines involving government a one officer’s action standing, ripeness, and redundant reme- inaction). Accordingly, or the because below, to argue dies that the courts challenge validity Threaders the the Court, this jurisdiction lack because the regulations, cosmetology rath statutes and justiciable. claims the Threaders are not than complaining illegally er that officials We consider each in turn. doctrine act, or excep failed to ultra vires acted the apply. Department tion does Standing the Commission are not immune from the Threaders’ suit. standing doctrine identifies judicial appropriate suits resolution. Viability
B. Todd, (Tex. Brown 53 S.W.3d Next, that the State contends the 2001). Standing assures there is a real because, suit officials are immune from controversy parties between the that will had their claims in prove Threaders judicial determined declaration jurisdiction. a to the plea order survive sought. (quoting Comp. Tex. Workers’ Heinrich, (“To See fall S.W.3d Garcia, Comm’n v. 893 S.W.2d 517-18 exception, this ultra within vires suit (Tex.1995)). statute, challenge a “[T]o complain government must not offi of a plaintiff must suffer or some actual [both] discretion, cer’s exercise of rather threatened restriction under the statute” allege, ultimately prove, must that the and “contend that statute unconstitu legal acted authority officer without or tionally plaintiffs restricts rights.” perform a purely failed ministerial Garcia, 893 at 518. The S.W.2d State act.”). argues The State because the argues that Patel and Satani —whose summary court granted judgment trial solely on claims are their as based status merits, State Threaders did threading salon standing owners—lack be claim, prove rendering , valid prongs fail standing cause both pleadings give the trial insufficient court test. jurisdiction. The State relies on Andrade Generally, analyze courts must Austin, v. NAACP in which we held standing plaintiff each individual Secretary was State immune bring alleg claim he or each individual she from suit because the constitutional claims Cnty., es. Heckman v. Williamson against her were non-viable. 345 S.W.3d (Tex.2012). However, S.W.3d (Tex. But, 6, 11-12, 18 2011). our conclu multiple plaintiffs “where there are ain simply sion there line of followed deci case, who injunctive declaratory seek sions which we held claims were (or both), individually, relief sue who pleading not viable due to basic defects. relief[,] who all seek same ... Id. at 13-14. Andrade stands for the un analyze court standing need not principle against remarkable that claims plaintiff long more than one as that state officials—like all claims—must be —so pleaded plaintiff standing pursue properly to be main order much *9 tained, more plain not that such must be relief than the other claims viable tiffs,” their Id. is negate immunity. reasoning on merits to at 152 n.64. The doctrine, ripeness on the plaintiff prevails simple: if one fairly Under whether, the must at time courts “consider merits, will relief prospective the same the sufficiently is are filed, lawsuit the facts standing regardless of issue developed injury ‘so that an has occurred Andrade, Id.-, see plaintiffs. also othér occur, likely being than or is rather (“Because voters seek at 345 S.W.3d ” Indep. Sch. contingent or remote.’ Waco relief, injunctive and declaratory only and Gibson, 22 851-52 Dist. v. S.W.3d relief, seeks the same each voter because (Tex.2000) (citations in original) (emphasis is re- standing only plaintiff one omitted). Thus, ripeness analysis fo quired.”). uncertain a case involves cuses whether Here, Yogi, threaders Momin contingent may that not or future events Violation, Alleged received Notices who not occur at anticipated may occur as con- standing, and the State does have all. Id. at 852. First, they have suffered tend otherwise. Here, Patel, Satani, although and Cha- the chal- actual restriction under some yet madia have not faced administrative TDLR statute initiated lenged because enforcement, threat is of harm more against each regulatory procéedings conjectural, hypothetical, than remote. alleged pursuant to their violations them Henna, business, Browz and Satani’s regu- statutes cosmetology warnings employing two for unli received second, contending And lations. threaders, been censed and he has re unconstitutionally that statute restricts legal department ferred TDLR’s threading. eyebrow rights practice $5,000 Patel risk enforcement. and Satani Yogi Accordingly, Momin and because penalties daily employing unlicensed standing, analyze need not we have 51.302(a), §§ threaders. Code Tex. Occ. standing of and Satani. Patel 1602.403(c)(1). works at And Chamadia threading the same Momin salon where argues also that be State Yogi at the were cited. Because time fees, attorneys’ cause the seek Threaders per the lawsuit filed Chamadia was was ultimately awarded will not nec the relief forming threading services without cos standing But is de essarily be identical. metology license and Patel and Satani case, at beginning of a termined employing did not were threaders who ultimately granted whether relief licenses, have cosmetology these individu parties for all same not determina subject likely als were to a real threat Here, question. tive of the Momin and well proceedings, civil criminal as Yogi standing to have seek relief and proceedings administrative that could re Andrade, all is we need to determine. See penalties sult and sanctions. See Mitz 6-11; Medina Barshop S.W.3d Veterinary v. Tex. State Bd. Med. Cnty. Underground Water Conservation Exam’rs, (Tex.App- 278 S.W.3d Dist., (Tex.1996); 925 S.W.2d 626-27 2008, pet. by agr.) (holding Austin dism’d Garcia, 893 at 518-19. S.W.2d challenge a constitutional to a state- licensing ripe law is when enforcement of Ripeness occur). “sufficiently likely” the law is argues Therefore, next State ripe. their claims are Patel, Satani, brought by claims and Cha- 3. Redundant Remedies Patel, Satаni,
madia are not ripe because Chamadia have administra also faced The State seeks dismiss disagree. tive enforcement. claims of who have We the Threaders re- *10 redundant authorizing citations based on the 2001.174 of courts ceived APA— redundant Under the to review administrative remedies doctrine. decisions—would n will doctrine, courts not entertain need the relief remedies obviate the the Thread- brought § when action under the UDJA See id. (allowing an ers seek. 2001.174 through pursued claim could be existing the same state courts reverse or remand See, orders, ones). e.g., enjoin channels. Tex. Mun. agency different but not future Comm’n, Agency v. Pub. Util. appeal Power The available remedies on from an (Tex.2007). The focus of finding S.W.3d administrative limited rever- case, is on the initiation of the the doctrine particular sal of the orders at issue. Id. is, Legislature whether the created a that But the Threaders seek than a more rever- statutory immunity waiver of sovereign sal of the citations issued Momin and parties to raise their permits Yogi. prospective that seek They injunctive re- through claims some other than agency avenue against lief future orders based Rents, See, e.g., Inc. Aaron v. the UDJA. regulations. the statutes and Accordingly, Dist., Appraisal Cent. Travis S.W.3d sought because the declaration goes be- (Tex.App.-Austin pet.) no order, of an yond agency reversal Section (“When (en banc) provides a an statute APA 2001.174 of the provide does not a order, for attacking agency a avenue remedy. redundant declaratory judgment action not he will The State’s contention that Sec remedies.”);
provide redundant see also tion the APA 2001.038 creates an ave Express, City Alamo Inc. Trans Union pre-enforcement nue for declaratory judg Tex. fer, 158 309 S.W.2d agency ment that an rule is invalid and (1958) (holding declaratory “an action for inju would redress the alleged Threaders’ does not lie” in a judgment suit as unavailing. ries is likewise When plain a upon [agency’s] a “direct attack serts proceeding tiff only challenges files a by appeal”). order rule, validity an administrative Legislature State maintains that the parties may are bound the APA and not provided Momin Yogi two alterna- seek under the relief UDJA because such tive avenues under the Pro- Administrative Leeper, relief would redundant. See (APA): (1) judicial Act cedures a suit for at 443-44. The APA a S.W.2d defines alleging review the administrative de- rule as: was “in violation cision of a constitutional (A) statutory agency gen- ... state „Code provision,” or statement of Tex. Gov’t 2001.174(2)(A); applicability eral that: § or pre- a suit declaratory judgment alleging enforcement (i) implements, interprets, pre- or application “that the rule or its threatened policy; law or scribes or or impairs, interferes with or threatens to (ii) procedure prac- describes or with or impair, legal interfere or requirements tice of a agency; state plaintiff.” privilege (B) 2001.038(a). inelud[ing] the repeal § amendment or The State contends that rule; prior of a provisions either of those APA because Yogi permits and Momin to suits that file (C) ... not including] a re- statement alleged injuries, they redress their would only the garding management internal may pursue relief the UDJA. under organization agency state disagree with assertion affecting private rights We 'the proce- State’s that a favorable Section decision under dures.
80
(5th
137,
n.2
Cir.
2001.003(6).
713 F.2d
138
Mesquite,
Here the
§
Tex.
Code
Gov’t
1983)
law);
v.
(applying Texas
challenge both rules as defined
Satterfield
Threaders
190,
Co., 268 S.W.3d
Cork & Seal
Crown
Because the
statutes.
APA and
by the
2008,
Texas
pet.);
no
(Tex.App.-Austin
215
the constitutional-
attack
cannot
Threaders
Dis
Pharmacy v.
Board
Gibson’s
State
pursuant
Section
of
ity of the statutes
884,
Inc.,
Center,
541
887-89
count
S.W.2d
APA,
claims
UDJA
of the
2001.038
1976, writ
ref'd
(Tex.Civ.App.-Austin
remedies
by
redundant
not barred
n.r.e.);
Johnny Frank’s
City Houston v.
of
doctrine.
(Tex.
774,
Co.,
779
Parts
480 S.W.2d
Auto
courts
that the lower
Having concluded
1972, writ
Civ.App.-Houston [14th Dist.]
merits.
turn
jurisdiction, we
had
n.r.e.);
Refining Co. v.
Oil &
ref'd
Humble
405,
Georgetown,
407-
City
428 S.W.2d
of
Constitutionality
of the Statutes
III.
writ);
1968, no
(Tex.Civ.App.-Austin
08
Regulations
and
Rhone, 222
City
v.
S.W.2d
and
Coleman
of
of Law
A. Due Course
1949,
writ
(Tex.Civ.App.-Eastland
649
refd).
as
They interpret
this standard
I, §
Texas Constitution
19 of the
Article
reviewing court considers
in which the
one
that
provides
(1)
legislative purpose
whether
deprived
shall be
No
of this State
citizen
one, (2)
a real
proper
is a
there is
statute
life,
or
liberty,
privileges
property,
that
connection between
and substantial
immunities,'
in
manner disfran-
language
as
statute
purpose
chised,
except
the due course
(3)
in practice,
statute functions
of the land.
law
or undue
works
excessive
the statute
I, § 19.
Const,
art.
Tex.
the stat
person challenging
on the
burden
twice noted
We have
least
statutory purpose.
to the
ute
relation
entirely consistent
have not been
courts
They argue
distinguishing
that the
charac
applied
of review
when eco
the standard
employing
of cases
the standard
teristic
challenged
legislation
nomic
under Sec
using
courts
evidence
that the
consider
course of law
tion 19’s substantive due
concerning
government’s purpose
both the
v.
Trinity River Auth.
protections. See
impact
for a law and the law’s real-world
Consultants, Inc.-Tex., 889 S.W.2d
URS
challenging party.
on the
(Tex.1994); Garcia,
n.5
893
263 &
recognize that
Threaders
the.real
go beyond
at 525. The Threaders
S.W.2d
substantial test affords less deference
They
that courts
those two cases.
assert
legislative judgments
than does the fed-
as-applied substantive due
considering
But
rational basis standard.
eral
challenges under
19 have
process
Section
J.W.T.,
to In the Interest
872
point
stan
mixed and matched three different
(Tex.1994);
189, 197-98 & n.23
S.W.2d
through
They
the years.
dards
review
Garcia,
v.
Davenport
834 S.W.2d
(1)
label those
as:
real and sub
standards
Hanlon,
(Tex.1992);
v.
LeCroy
(2)
stantial,
including
rational basis
consid
(Tex.1986), as exam-
338-41
S.W.2d
evidence,
no-evidence
eration
specifical-
ples of cases in which this Court
rational basis.
certain-language in
ly
implied
said
pro-
argue
that the first ref
affords more
Threaders
the Texas Constitution
substan
in the federal
comparable
erenced
than
text
standard —“real
tection
They
exemplified by cases such as State Constitution.
also reference
tial”—is
Richards,
Supreme
having
as
597 United States
157 Tex.
S.W.2d
(1957);
Castle,
City
v. Aladdin’s
Mesquite
City
Aladdin’s
Inc. v.
noted
Castle, Inc.,
being
102 S.Ct.
ation of
exemplified
evidence” —as
City
cases such
San Antonio v.
(1982),
I,
1070, 71
Article
L.Ed.2d
L.P.,
Properties,
TPLP
Park
might
§
af-
Texas Constitution
Office
*12
60,
(Tex.2007); Garcia,
65-66
S.W.3d
893
the Four-
protections than
ford more
does
525-26;
State,
S.W.2d at
v.
Limon
947
claim that
They
Amendment.
teenth
620,
1997,
627-29 (Tex.App.-Austin
S.W.2d
twenty other
the “real and
states utilize
writ);
no
v.
Dairy,
Martin Wholesome
test.2
substantial”
Inc.,
586,
(Tex.Civ.
437 S.W.2d
590-600
stan
present
1969,
Threaders
second
n.r.e.).
App.-Austin
writ
ref'd
test,
including
this
applying
dard —“rational basis
Courts
consider
the Threaders
422,
(1977)
following
support
to
(upholding
2. The Threaders cite the
requiring
427-29
law
position:
employers
pay
compensa
Khan v. State Bd. Auctioneer
to
of
70% workers'
of
Exam’rs,
936,
166,
appeal
577
842 A.2d
946-48
tion
while-
Pa.
award
of the
was
award
Res,
(2004)
regula
(upholding
pending); Dep’t
& n.7
auctioneer
Natural
& Envtl. Prot.
OMYA,
Va.,
fraud);
designed
684,
prevent
to
tions
Inc.
v. No. 8 Ltd.
528 S.W.2d
686-87
of
532,
Middlebury,
(Ky.1975) (striking
758
v. Town
171 Vt.
A.2d
down law that conditioned
of
777,
(2000) (upholding
grant
780
strip-mining permits
obtaining
commercial traffic
of
on
congestion, pollution,
limits
reduced
owner's
surface
consent
because was
damage);
Courtesy
property
Peppies
Cab Co.
as an environmental-protection
ineffective
397,
Kenosha,
measure);
Block, Inc.,
City
165
475
v.
Wis.2d
Hand v. H & R
258
of
156,
(1991)
774,
916,
(strik
(striking
(1975)
N.W.2d
158-59
down
Ark.
528 S.W.2d
923
ing
dress code
a sub
price
agree
taxicab
because it lacked
down minimum
for franchise
public
improving city's
stantial relation to
im
public
ments because it bore no relation to
McGinn,
age);
safety);
&
v. S.D. State Bd. Med. Osteo
health and
Leetham v.
Katz
524
Exam’rs,
274,
(Utah
323,
1974)
pathic
432
(striking
N.W.2d
278-79 &
P.2d
325
law
down
(S.D. 1988) (upholding medical-practice
hair);
restricting cosmetologists
n.6
to women’s
Kuhn,
designed
regulations
prevent malpractice
Md. State Bd. Barber Exam’rs v.
270
fraud);
Finocchiaro,
216,
496,
(1973) (same);
Louis
Inc. v. Neb. Md.
312 A.2d
224-25
487,
Comm’n,
Denver,
Liquor
Inc.,
Control
217 Neb.
Instantwhip
351
Colo
Orcutt v.
ex rel.
701,
(1984)
940,
(Colo. 1971)
(strildng
(striking
N.W.2d
704-06
down
490 P.2d
943-45
price
liquor
wholesale
because
controls
products
down ban
so-called "filled milk”
relationship
public
lacked
relationship
pro
substantial
because
ban bore no
welfare); Myrick
Cnty.
fraud);
tecting
safety
public
preventing
v. Bd.
Pierce
Comm’rs,
698,
140,
Bd.,
352,
102
Racing
Wash.2d
P.2d
677
v. Ill.
Brennan
42 Ill.2d
247
(1984) (en banc),
881,
(1969)
143-47
102
(striking
amended
N.E.2d
882-84
down
698,
(strildng
regulation
Wash.2d
able. Development of the Standard B. third stan reference
The Threaders
basis,”
Rights
of the 1836
rational
Declaration
“no evidence
dard as
included
in cases such
Constitution
Republic
is embodied
they say
625, 632-33;
rights guaranteeing “due
separate
Gar
three
Barshop, 925 S.W.2d
*13
(Tex.
89,
of the
Kubosh,
or the “due course
98-100
of law”
377 S.W.3d
course
cia v.
(1)
sixth,
the
which
pet.);
no
law
land”:
Dist.]
App.-Houston [1st
Ewald,
prevented
an
(among
protections)
907 S.W.2d
other
Express
Lens
1995, writ);
from
proceeding
no
and Tex
criminal
be-
accused in a
(Tex.App.-Austin
Center,
life,
or
liberty,
property,
of
ing “deprived
Board v. Lee Vision
as Optometry
(2)
(Tex.Civ.
law”;
of
the elev-
Inc.,
by
due course
385-86
515 S.W.2d
n.r.e.).
injured
enth,
per-
that an
provided
writ ref'd
Un
which
App.-Eastland
by
course of
remedy
of
rational
have
due
version
the
son “shall
the no-evidence
der
seventh,
test,
law”;
provided
which
argue,
regula
economic
the
they
basis
they
deprived
privi-
if
have
of
citizen shall be
tions
not violate Section
that “[n]o
do
outlawed, exiled,
legitimate
any
in a
manner
justification
leges,
or
any conceivable
disenfranchised,
interest,
except by due course of
regardless of
the
whether
state
Rep.
Const,
by
govern
the
of
land.”
is advanced
the law the
justification
of Tex.
of
court,
6-7, 11,
re-
reviewing
Rights
the
of
or “invented”
Declaration
ment
Gammel, The
matters.
Laws
printed
“seldom”
in H.P.N.
and evidence
of
1822-1897,
(Austin,
at 1083
Gammel
say both the “real and
The Threaders
1898).
Book Co.
including
“rational
basis
substantial”
group
delegates
of
met to
of evidence” standards have
consideration
propose Texas’s first state con-
being
pri-
the
draft and
prongs, with the first
two
responsible for
The committee
them. The first
stitution.
mary
between
difference
standard,
proposed
Bill
includ-
drafting
Rights
the
of
substantial
prong of the real and
of
clauses—not the
maintain,
ing two due course
law
challenged
the
they
whether
Rights
of
clauses in the Declaration
a real and sub-
three
regulation
or
statute
Republic
of
of Texas Constitution.
legitimate govern-
the 1836
stantial connection
Comm,
Provi-
Rights
on Bill of
& Gen.
They contrast that test
objective.
mental
Convention,
sions,
the
Assem-
including consider-
Journals
with the rational basis
of
standard,
on
City
the
Austin
the Fourth
which
ar-
bled at
ation of evidence
of
of
Framing a
Purpose
the
July,
gue
and favorable toward
is more lenient
for
Texas,
the
assem-
only
it asks
Constitution
State
government
because
of
(Austin,
11, 1845,
&
July
bled
at 34
Mine
regulation arguably
whether a statute or
1845),
http://tarlton.
available at
Cruger
to a
relationship
could
rational
bear some
objective. They
legitimate governmental
law.utexas.edu/constitutions/texasl845/
pro-
journals.
suggested
One of the
clauses
for both
further
standards
maintain
to have
whether,
balance,
injured party’s
an
tected
prong
second
of law.” Id. The
“remedy by due course
imposes
challenged
statute
rule
incorporated the criminal due
clause
arbitrary
unduly
burden on the
other
harsh
protections
pany
course
law
Section 6 of
a monopoly on the butchering of
Republic’s
Rights
Declaration of
into a
animals in New Orleans.
Id. at 38-39.
composite
guarantee:
due course
“No citi- The statute
challenged
was
under
deprived
life,
zen of this
shall
state
Thirteenth and Fourteenth Amendments
liberty, property,
outlawed,
or privileges,
to the federal Constitution.
Id. at 58-59.
exiled,
disenfranchised,
inor
manner
In rejecting
claims,
the butchers’
except
due course
law
the Court
discerned
distinction in the text of
Thus,
land.” Id.
proposal
committee’s
the Fourteenth Amendment between the
“life, liberty, property”
added
to the exist-
“privileges and immunities of
citizens
ing
guarantee,
due course
law
while n theUnited
States”
those
“citizens of
removing
phrase
pro-
same
from the
states,”
the several
concluded
criminally
tections
accused.
Id. Fourteenth
protected
Amendment
only
proposal
also
“of
added
this state”
privileges and
immunities
owed
after the word “citizen.” The proposal
their existence to the
government.
federal
I, §
was ratified as Article
16 of the Texas
Id. at
78-79.
It
obligation
was the
Constitution of 1846.
states,
according to
Supreme
language
in the Due Course of Law Court,
protect
“privileges or immuni-
*14
changed
Clause
not
in
was
the Texas Con-
ties”
in
founded
citizenship,
state
including
1861, 1866,
adopted
stitutions
in
аnd 1869. even such
rights
fundamental
as
Const,
1861,
I,
16;
§
See
art.
Tex.
of
Tex.
acquire
possess
and
property
and
Const,
Const,
1866,
I,
16;
§'
art.
of
Tex.
of
pursue
happiness
and obtain
safety.
1869,
I, §
art.
16. But the Constitutional
Thus,
Id. at 74-78.
preceding
discussions
Convention of 1875 reexamined the clause proposal
adoption
of the 1875 Texas
proposed changing
it to its current Constitution
against
were held
the back-
Comm,
language.
Rights,
on Bill of
Jour-
of
drop
Supreme
recent
Court mandates
nal
the Constitutional
Convention
of
of
placing guardianship of
rights
non-federal
Texas, Begun
State
and Held at the
of
of individuals
in
squarely
the hands of the
Austin,
6th, 1875,
City
September
as-
of
states. See Debates
in the Texas Consti-
2, 1875,
(Galveston,
sembled Oct.
at 274
(Seth
1875,
292
S.
tutional
Convention
of
1875),
News Office
available at http://
ed.,
1930).
McKay
Univ. of Tex.
tarlton.law.utexas.edu/constitutions/texas
1876/journals.
proposals
adopted,
were
Ratification of the Fourteenth Amend-
in
resulting
reading
clause
as it now ment to the United States Constitution in
Const,
I, §
does. See
art.
Tex.
1868 seemed to hasten development of
process
substantive due
jurisprudence.
1873,
years
two
before the convention
See Thomas M.
A
Cooley,
that proposed
Constitution,
Texas
the 1875
TREatise on
Supreme
the United States
Court inter-
Constitutional
Limitations Which Rest
Upon
Legislative
preted
phrase
“privileges
or immuni-
Powee of the
States
ties” in
AMERICAN Union 354-56
the United States
in
Constitution
OF THE
Cases,
same,
in
Slaughter-House
(16
The view Texas was the
as exem-
Wall.) 36,
(1873). There,
plified by
City
L.Ed. 394
cases such as Milliken v.
challenged
several butchers
a
Council
Weatherford,
Louisiana
health, morals, safety or standard con a much more deferential standard of re- —a sistent with decisions the United view: States See, Flake, Supreme e.g., parte Court. Ex power [have] We said that
67 Tex.Crim.
149 S.W.
148-50
courts
legislative
to review
action in re-
Kansas,
(quoting Mugler v.
123 U.S.
spect of a
affecting
general
matter
(1887)).
8 S.Ct.
L.Ed. 205
only
welfare exists
when that which the
legislature has done comes within the
As
standards,
to federal due process
this
that, if
rule
purporting
statute
to have
period before 1935 is sometimes referred
protect
been
public
enacted to
to as
period”
the “Lochner
in reference to
health,
morals,
the public
Supreme
United States
Court’s deci
safety has no real or substantial relation
York,
sion in Lochner v. New
198 U.S.
is,
objects,
those
beyond all ques-
There,
S.Ct.
87 sum, Supreme presumed statutes are ly after the United States to be constitutional. To overcome that Slaughter-House by in Cases decision of an put responsibility presumption, proponent as-ap for which the Court large segment of individual plied challenge regulation an protecting economic on the Given rights directly states. Section 19’s substantive statute under due context, 19’s sub temporal legal requirement Section must course of law demon provisions (1) course stantive due undoubted purpose the statute’s strate either to bear at least ly rationally were intended some arguably not be could related to protecting rights interest; burden individual legitimate governmental Supreme Court that the United States de whole, when as a considered statute’s protected by termined were feder actual, effect as applied real-world al That Constitution. burden been challenging party arguably could not various recognized in decisions Texas to, rationally related or is so burdensome one twenty- courts for over hundred and of, in oppressive light govern as to be so years. today: five continue to do We mental interest. as-applied
the standard review sub to economic challenges clear, stantive course due To be the foregoing accompa an regulation statutes includes includes the presumption standard nying consideration as reflected cases legislative constitutional, enactments are Davis, referenced above: whether statute’s e.g., v. 426 Smith S.W.2d 831 unreasonably (Tex.1968), effect as a whole so places bur a high burden on in oppressive densome that it becomes claiming re parties statute is unconstitution underlying governmental See, lation to the in e.g., al. Tex. State Bd. Barber See, e.g., Mayhew Coll., terest. Town Inc., Exam’rs v. Beaumont Barber (Tex. Sunnyvale, (Tex.1970). S.W.2d 938 964 454 S.W.2d 732 pre 1998) that an (stating ordinance “will vio sumption of constitutionality high and the process only late due if it is substantive unconstitutionality to show burden would unreasonable”) (em clearly arbitrary and regulations as apply adopted by well to Garcia, phasis original); S.W.2d at 893 agency pursuant statutory authority. (determining 525 “sufficiently statute was Co., Oil Trapp See v. Shell 145 Tex. rational and reasonable to meet constitu Although S.W.2d requirements”) (empha tional due course ques whether a law is a unconstitutional added); Auth., Trinity sis River law, tion of determination will most (identifying S.W.2d at statute con reviewing require instances court to stitutional because “strikes bal record, including consider the entire evi fair legislative purpose ance” between the Garcia, parties. dence offered rights litigants) added); (emphasis S.W.2d at 520. Co., Ry.
Hous. & Tex. Cent. 84 S.W. at (noting inquiry the constitutional was Application: C. justified,
whether statute’s effect was Cosmetology Statutes unreasonable, “an operated arbitrary, Regulations Milliken, way”); oppressive Tex. (stating The Threaders do contend inquiry constitutional *18 licensing that the operated was statute State’s commercial whether “unreaso- nabl[y] practice cosmetology rationally of not of common and contravention legitimate governmental related to a inter- right”). 88 clients; to 40 chemistry; 50 hours care of strongly urge that But
est.5 aid; sanitation, safety, hours and first training required to to of of number hours management; to su- an 35 to 25 hours hours an esthetician license even obtain removal; hair to aroma perfluous 15 hours unduly effect arbitrary and burdensome nutrition; 10 therapy; 10 hours to and the 750-hour re- to them because applied 83.120(b). § psychology. hours color Id. to to has no rational quirement connection are Commission-approved beauty schools require- and sanitation safety reasonable threading to teach tech- ments, says required are the inter- which the State pro- licensing niques. required of The schools are to underlying its threaders. ests issue, superfluous 25 hours instruction in vide resolving we consider removal, Garcia, encompasses 520. hair thread- 893 which record. S.W.2d entire ing, schools but individual decide safety statutes address stan- Several techniques to teach. reflects The record relating to sanitary and conditions dards than that fewer ten Commis- cosmetology. See Tex. Oce. Code teach sion-approved beauty schools 1602.001, §§ Commission rules 1603.001. threading techniques, only one and public safety sanitary and also address those than hours to devotes more a few 16 Tex. E.g., conditions. Admin. Code Further, are threading techniques them. 83.50(a), .53(a)-(b), .70®, .71(b), §§ .100- required part to mandated be To competency .115. address cosmetolo- tests. tests practical Both the and written Texas, Legislature gists and Com- are a third- administered and scored specific imposed mission have educational testing party testing firm. firm’s The training and requirements cosmetolo- guidelines practical show that the examina- estheticians, salon gists, operators. and thirty tion is an and hour minutes 1602.001,.254, .255, §§ .257. Tex. Occ. Code sanitation, length and includes disinfection esthetician, To thread- become licensed removal, and hair not include does hours of ers take at least 750 instruc- must threading, although may elect test-taker Commission-approved training tion in a eye- to six remove hairs the model’s 1602.254(b)(3), program, § id. and take using brow thread instead of tweezers dur- and ex- State-prescribed practical written ing part of the the writ- exam. Nor does aminations. See 16 Tex. Admin. Code ten examination include as to questions 83.20(a)(6), .21(e). .21(c), §§ train- Those threading techniques, it includes although ing programs must at least devote globally questions sanita- relevant about treatments, hours of to facial instruction tion, disinfection, safety. and cleansing, therapy; masking, and 90 hours above, anatomy to As hours of physiology; and 75 hours shown the 750 machines, electricity, required li- equip- and related instruction an esthetician ment; cense, makeup; required directly 75 hours to devot- hours orientation, rules, laws; sanitation, safety, hours ed first aid. regulated practice ing contagious State has cos- diseases." infectious metology Apr. since 1935. See Act of (observing purpose Id. at R.S., Leg., 44th Gen. ch. Tex. "protect from inex- Act was 304, 304-11, repealed by May Laws Act of beauty perienced unscrupulous parlors R.S., 6,1, Leg., §§ 76th ch. beauty response to the culture schools" in 1431, 2182-2206, Tex. Gen. Laws 2439-40 public being "daily exposed due to disease (repealing adopting former Act while also hy- insufficient care as to sanitation Code). Occupations stated intent of giene"). legislation "prevent spread- initial was to *19 addition, sanitation, hygiene hygiene considering sanitation are and But and the ac- they actually as other por- perform. relate to four tivities covered State treatment, argues greatly of the curriculum: facial that the exag- tions Threaders laws, hours, superfluous anatomy, gerate rules and the number of unrelated Hygiene many hair as as of curric- removal. and sanitation concedes that the practical in the ulum are not also addressed written hours related to activities exams, topics actually licensing along perform. with other threaders including safety. disinfection and Differentiating types of between make, argument One the Threaders practices cosmetology prerogative is the of its challenges rationality which at core Legislature regulatory agencies to any required training, of the unli- is that Legislature delegates properly practice eyebrow threading of is censed it is not for authority. And courts to simply public a threat health and their second-guess decisions as to the ne safety; support argument they and the cessity training extent' of that expert submit- reference witness who required for types shоuld be different report addressing ted a all of the available providers. commercial service But we eyebrow threading, medical literature on that passing persons note licensed analysis as empirical as well her own apply eyelash specialty extensions—a in technique’s safety. on her in- Based volving use of a high chemicals and vestigation professional experience rate of required adverse reactions —are expert eyebrow threading, with con- only 320 hours training. See undergo and, threading that from a cluded safe id. note that also when We the Threaders perspective, requires nothing medical more suit, hair filed braiders were required training. than basic sanitation only training, 35 hours of undergo 16 of expert But Threaders’ also raised which in health safety. were See id. 83.120(b). however, § health concerns testimo- during her Hair braiding, ny. may threading deregulated testified that lead She since been Legislature. 13, 1999, spread highly contagious May R.S., Leg,, See Act of 76th bacterial infections, warts, flat including 1602.002(2), and viral ch. § sec. 1999 Tex. 1431, 2186, skin-colored lesions known mulluscum repealed Gen. Laws Act contagiosum, pink eye, impeti- .ringworm, R.S., May Leg., 84th H.B. 2717 go, staphylococcus aureus, (to among oth- at Tex. Oco. Code codified agreed 1601.003,1602.003(b)(8)). §§ also She that failure utilize ers. appropriate practices sanitation ex- —for approximately The fact 58% the materials, ample, proper use of disposable required training minimum are ar- hours stations, cleaning work effective hand- guably relevant the activities threaders washing techniques, and correct treatment not, perform, while 42% the hours are of skin fur- irritations and abrasions —can aspect determinative of the of the second threading expose ther clients to infection prong as-applied standard which and-disease. require- asks the effect of the whether
Moving beyond argument- rationally ments as a whole' could be relat- threading governmental not- risks to pose They does health ed to the interest. with, begin percentage . Threaders that as But the must also be contend could be. factors, many required training along as 710 of considered other such quantitative aspect hours for esthetician are not of the hours license as the to properly training represented by percentage related and the threaders *20 charge only while schools with them when determin- schools costs associated prong— $3,500. of to number aspect the second the record as the ing other Given the licensing requirements as training required subjects the of for whether of hours oppres- as to be are so burdensome threading, whole to our decision nei- unrelated the number on, Threaders. Where sive to the by, nor is the exact ther turns altered costs required and the associated of hours admittedly But the unrelated cost. to low, required ratio of hours the are hours, training with the required combined important hours is less arguably relevant pay trainees have to for fact that threader its question. But as to the burdensome at lose the training and the same time the required as the increases importance money to make actively prac- opportunity For if example, the stat- increase. hours trade, that us to conclude ticing their leads required rules ten Commission’s ute and high have the Threaders met burden training to be for threader hours of that, them, as to the proving applied of hours, were percent, 5.8 licensed and 58 training to of 750 hours of requirement do, to threaders arguably relevant what just unreasonable become licensed not hours of the irrelevant would the burden harsh, it is that oppressive but so heavily determining in whether weigh less I, § Article 19 of the Texas Con- violates requirements of as a whole the effect the stitution. aspiring oppressive. threaders is however, Threaders, the the case of the Response Dissents IV. to the of large arguably number relat- hours dissenting say things four The Justices practice threading, to the actual of the ed First, they say responding that bear to. hours out-of- associated costs those measuring provi- the the effects delayed employ- pocket expenses, the “oppressive” to sions standard is hours opportunities taking while the ment byit no at all. Post at measure standard number to highly makes the relevant (Hecht, C.J., post at 142 dissenting); licensing requirements whether the as a J., (Guzman, being dissenting). actuality level so The whole reach the burden- they are oppressive. they pro- is that some the matter the standard measuring pose provi- for effects dividing bright line The between practical for all no stan- purposes sions is required but irrelevant the number way only The an enаctment could dard. yield harsh, that would consti- hours if fail the test the dissenters advocate is tutionally acceptable, requirement and the purpose were com- enactment assuming that would number not. Even is, pletely mismatched with—that it bore (a that 430 hours number the Threaders relationship provisions no rational to—the dispute) of the ar- training mandated are it. example, enacted effect For assume guably to what commercial relevant con- this case record demonstrated practice, do that means threaders conceded, clusively, or the State that the required undergo threaders only 40 Threaders are hours equivalent eight of train- 40-hour weeks training safety required are relevant to ing safety ap- unrelated health and as in performing threading. It plied threading. sanitation parties disagree The not matter attending cosmetology about costs of would under Chief Jus- training proposed standard. For under required practice license tice’s standard, long as threading. part so at least some point Threaders evi- averages $9,000. rationally dence that the cost required training could be $9,000 sanitation, safety says private State the entire cost is related rationally hours are dissenting related because Justices would reach the result provisions “might a whole propose by achieve measuring licensing objective.” logical provisions Post 139. The against standards —the stan- *21 result of such standard would if dards of be that “rational relationship” jurispru- 1,500 require just State were even more different standards. Post at dence— training, hours of 138-39. require- Expressing by increased factors which a statute’s pass constitutionality ment constitutional is to would muster. be meas- by ured and which Why is that so? Because if 40 we reach our decision hours of is not legislating; it is might conceivably judging training Leg- providing effect the and guidance for purpose constitutional, to use in islature’s and be courts future chal- lenges to regulations, statutes or any greater then that number included history tells us will that same 40 hours come. would also. Fourth, the Chief refers to
Second, re- the Chief a references Justice Justice discovering unleashing and “the Lochner minority small of other states that require monster” if legislative enactments are threaders to be licensed either explicitly against measured a standard other than by generally requiring licensing of those the rational relationship standard. Post at commercially who superfluous remove above, But courts, discussed Texas hair. Post 128. But the Threaders nei- including Court, this expressed have and rationality ther contest the of the State’s applied various standards considering licensed, requiring them to be nor the as-applied process substantive due claims requirement they that take training sub- century. for over a And it is those deci- jects such as sanitation hygiene. and sions on which the we set standards out What is contest the excessiveness of today Surely are if based. those cases training requirements given mag- represented running a “monster” amuck in nitude of the training. irrelevant And Texas, this would have long ago requirement whether excessive vio- decisively dealt it. lates the Texas Constitution is not deter- relationship mined between other great Courts must extend deference to regulations states’ and statutes and their legislative enactments, apply strong a pre- respective constitutions. sumption in favor of their validity, and maintain a high bar for declaring any Third, the says that artic- Chief Justice them in of the Constitution. violation But ulating weighing factors such as the judicial is necessarily deference con- cost required training and relevance strained protections where constitutional in considering the constitutionality of the implicated. provisions “generally is leg- referred to as islating” by judges, and should be done Conclusion Y. post at Guzman asserts Justice provisions Occupations drawing line in this case should Code and promulgated Commission rules Legislature, be done post at 143. pursuant requiring that Code the indi- But providing standards for measuring the vidual to undergo Threaders at least 750 constitutionality of legislative enactments hours of training in order to obtain state is not only judicial prerogative is—it license practicing before commercial necessary pre- order make the law threading violate the Texas Constitution. dependent dictable and not on the proclivi- judge ties of or judges whichever happen We judgment reverse the of the court of considering Indeed, appeals the case. the case to the remand trial indispensable hu- grace, mental in accor- proceedings further court for dignity prosperity.2 man opinion. this dance with blessed, living doubly under Texans are concurring filed á Justice Willett sharing singular pur- two constitutions Lehrmann Justice opinion, which freedom, the pose: to secure individual joined. Justice Devine flourishing. human condition essential illitera- civic today’s age staggering concurring opinion. filed Boyd Justice of Americans cannot percent cy—when govern- correctly single branch of name a dissenting filed a Hecht Chief Justice people mis- unsurprising ment —it Guzman opinion, in which Justice *22 defining majority as America’s take rule joined. Justice Brown state charters value.3 But our federal and dissenting a filed Justice Guzman belief, not, contrary popular to about are opinion. nei- “democracy1 appears word—a document, in the Declaration ther nor Willett, joined by Justice Justice enlightened 18th- and Independence. Our Devine, concurring. and Justice Lehrmann Founders, federal and 19th-century both To the emotion understand state, things, higher, upended and aimed clasped as I this mon- my swelled heart to brilliantly power enshrine divided I had no master who ey, realizing that (liberty), merely process promise it was me—that could take (democracy). own, my my hands were mine—that (federal) is One our constitutions precious more could earn and (state) short, long really is the other —like only a coin.... I was not freeman liberty’s prima- long both underscore —but man, and no master free-working Constitution, cy right away. The federal at the week Hugh ready stood the end of Preamble, first of the de- sentence earnings,1 to hard my seize Blessings clares its mission to “secure joy at Douglass’s irrepressible Frederick Liberty.”4 The Texas Constitution like- exercising captures his freedom hard-won time, stating up no front wise wastes transforma- just how fundamental —and recog- Bill aim to Rights paramount its liberty Self-ownership, is. tive—economic great general, nize and establish “the body mind right put your liberty gov- principles essential and free luxury is not a productive enterprise, point mere unsubtle and un- ernment.”5 The is gov- govern- Liberty provided by is not enjoyed at the sufferance deniable: 17, 2014), http://cdn. (Sept. Douglass, finds available at Life and Times of Frederick 2001) Douglass (photo, reprint annenbergpublicpolicycenter.org/wp-contenl/ Frederick upIoads/Civics-survey-press-release-09-17- (last 2014-for-PR-Newswire.pdf visited June work, Pope recently re- 2. Honest Francis 25, 2015); Annenberg Policy see also Ctr., Pub. flected, just earning our more than means (providing Survey Appendix Civics work, no daily "Where is there bread: there methodology study), http://www. for the (Pontifex). dignity.” Pope June is no Francis annenbergpublicpolicycenter.org/wp-contem/ 11, 2014, a.m. Tweet. Available at 1:11 uploads/Civics-survey-appendix-09-17-14.pdf https://twitter.com/Pontifex/status/608909 25, 2015). (last visited June Const, pmbl. 4. U.S. Release, Annenberg Policy Ctr. Press Pub. Penn., know sur- Univ. Americans survey prisingly government, 5. Tex. art. I. Const, little about their ernment; government. human liberty preexists right pursue unalienable sovereign; it gift It not a from the is our happiness curtsying govern- without birthright. Innate. Unal- natural 'Fixed. ment on knee. It is bended about whether ienable. government rent-seeking can connive with
[*]
[*]
[*]
#
#
factions to ration
liberty
unrestrained,
judges
submissively
whether
must
uphold
Democracy is
and a lamb
two toolves
vot-
ing on
lunch.
even the most
what
have
Liber-
risible encroachments.
ty is a
contesting
well-armed lamb
Supreme
repeatedly
vote.6
pursue
declared that
a lawful
struggle
This case
timeless
concerns the
calling
govern-
“free from unreasonable
personal
government
between
freedom
guaranteed
mental
interference”
under
Do Texans
power.
presump-
live under
Constitution,7
“objective-
federal
and is
of liberty
presumption
tion
or a
of re-
ly, deeply
history
rooted in this Nation’s
n
straint? The Texas Constitution confers
pro-liberty
tradition.”8 A
presumption
critically, it
power
even more
con-
—but
is also hardwired into the Texas Constitu-
power.
strains
What
outer-bound-
tion,
no
*23
citizen
declares
shall be
limits
ary
government
on
actions that
life,
“deprived
liberty, property,
[or]
trample
right
Texans’ constitutional
privileges or
phrasing that
living
earn
honest
for themselves and
immunities”9—
already possess
indicates citizens
these
their
families?
observers
Some
liken
freedoms,
government
and
cannot
take
judges
calling
umpires,-
legal
baseball
strikes,
“except
them
the due
by
and
when it
course
law
balls
comes to
the
laws, just how
licensing
gener-
restrictive
are thus presump-
land.”10 Texans
ous is the constitutional strike zone? Must
free,
tively
government
justify
and
must
the
rubber-stamp
courts
even
most non-
deprivations.
just
its
So
how nonsensical-
on occupational
sensical encroachments
your
can
stifle
ly
government
constitution-
patently
Are the
farcical
freedom?
most
right to put your
gump-
al
know-how and
nigh
protectionist
and
restrictions
unchal-
tion to
in
trade?
gainful
use
there,
fact,
lengeable,
judicially
I
li-
recognize
potential
benefits of
enforceable limits?
public
censing:
protecting
pre-
eyebrows
This case raises constitutional
venting
recognize
I also
charlatanism.
building-block questions
asks
because
proven
of constitutional con-
benefits
about constitutional architecture —about
public
protecting
pre-
straints:
govern
how we as Texans
ourselves and
venting
Invalidating
collectivism.
irration-
relationship
about the
of the citizen to the
al
laws
not beckon a
does
Dickensian
This
far
State.
case concerns
more than
frauds
pretenders.
world
run-amok
pluck
whether Ashish Patel can
unwanted
simply
is simple,
The Court’s view
hair with a strand of thread. This case is
fundamentally
impinge your
about the American Dream stated: Laws that
constitu-
Widely,
assuredly,
Benja-
if
attributed to
see also 1 William
Blackstone,
Commentaries
("At
min Franklin.
evety
might
*427
law
use
common
man
pleased....”).
what
he
trade
474, 492,
McElroy,
7. Greene v.
U.S.
al meant advance individual I. freedom; there for mere lays This case spirited bare a debate opted show. Our Framers for constitu- raging circles, in legal conjures one that is, tional —that government, limited — legal buzzwords pejoratives galore: majorities meaning possess don’t an un- restraint, activism vs. deference vs. dere- trammeled to trammel. The State liction, adjudication vs. abdication. The stamp would have us awield rubber rather rhetoric at overheated, times seems than a gavel, but a written constitution is temperature reflects the stakes. It mere if meringue rotely courts exalt ma- concerns the most elemental —if not ele- joritarianism constitutionalism, over mentary question of American jurispru- — thus forsake what Chief Justice Marshall dence: the proper judiciary role “painful duty” say, called them —“to under the Constitution. such an act was not the law of the land.”20 duty Judicial requires courts to judi- act sure, Court,
To be
Capitol,
not this
cially by adjudicating, not politically by
*25
of policymaking
the center
gravity, and
legislating.
proper
So when is it
for a
judges
lousy
are
second-guessers of the
court to strike
legislative
down
other
execu-
branches’
economic judgments.
action
tive
policy-setting power
Lawmakers’
unconstitutional?
is unri-
There are
people
sides,
of goodwill
valed—but
it is not
unlimited.
both
Preemi-
and as
equal omnipotence.
demonstrates,
nence does not
this
Politi-
case
it
legal
seems a
cians
if
pass,
test,
decide
laws
but courts
Rorschach
person’s
decide
where
“judi-
one
if
pass
those laws
muster. Cases stretch-
cial engagement” is
person’s
another
“judi-
Constructing
the-century Progressives
perva-
who
Kersch,
17. Ken I.
craved
Civil Liberties:
state,
Development
regulatory
got
sive
Discontinuities
in the
it via the New
of American
(2004).
Supreme
Constitutional
Law 151
Deal-era U.S.
Court.
Holmes,
18. Letter from Oliver Wendell
Jr. to
(1789)
Cong.
19. See 1 Annals
(Joseph
439
(Mar.
Harold Laski
in 1 Holmes-
1920),
ed., 1843).
Gales
Correspondence
Laski Letters:
The
of Mr. Jus-
J. Laski 1916-1935
tice Holmes
Harold
(4 Wheat.)
Maryland,
20. McCulloch v.
U.S.
17
(Mark
ed.,
DeWolfe Howe
1953).
316, 423,
(1819).
proposed would
may reasonably prescribe
by
state
tions as the
been understood
ples
have
well-being of
good
for the common
law.” Lo-
people and our
traditions
our
only
society”).
be struck down
45, 76,
A law should
York,
25 S.Ct.
U.S.
198
v. Ñew
chner
or
relation
J.,
"no real
substantial
if there is
(1905) (Holmes,
539,
dissent-
937
49 L.Ed.
by
employed
state and
the means
between
according
Judge Robert
ing).
proviso,
to
This
by
accomplished
sought to be
its
end
Bork,
prompted Bork to
"spoiled it all” and
69,
Justice
legislation.”
The Lone Star State
not immune from
doesn’t
florists,66
proliferation.
require
An ever-growing
licensure
interior
designers,67
govern-
breeders,69
convince
massagers,68
Texans must
horse'
number
ferret
or
at
only
57.
Id.
678. See also Morris M.
66.
is
country
Louisiana
state in the
Kleiner,
Licensing
Ensuring
requires
licenses for florists. See La. Rev.
Occupations:
Quality
or
Re-
(W.E.
804(A)(2), (3), (4), (C), (D),
§§
stricting
Upjohn
Insti-
3:3
Competition?
Stat.
Ann.
Research, 2006);
(2014).
Employment
part
tute for
3:3809
And
Morris
until
Kleiner,
Licensing:
licensing
aspiring
Occupational
M.
exam for
florists
Protect-
included a
flower-arranging
ing
judged by
the Public
Protectionism?
demonstration ...
Interest
(W.E. Upjohn
competition.
future
Employment
for
Institute
Re-
See
id.
search,
3:3807(B)(2) (2008),
2011-009,
2011).
§
Policy
Paper
amended H.B.
No.
(La. 2010);
Reg.
Leg.,
Sess.
see also
Haw, supra
58. Edlin
note
at 1102.
Scott,
Robert Travis
Florist bill delivered to
Today, licensing substitutes to some extent for
desk,
Bobby
Gov.
Hndal’s
Times-Picayune
The
Hoppough,
unionization. See Suzanne
(June 16, 2010),
athttp://www.nola.
available
Unions,
25, 2008,
New
Feb.
available
com/politics/index.ssf/2010/06/florists_bilL
Forbes,
http://www.forbes.com/part_forbes/2008/
at
delivered_to_gov.html.
OO.html.
0225/1
See,
(West
e.g.,
§§
67.
481.213
Fla.
Ann.
Stat.
Krueger,
B.
59. Alan
Do You Need a License
2015);
(West
to
§
37:3176
Rev. Stat. Ann.
La.
Living?
Might
Surprised
a
Be
Earn
You
at
2014);
(West
623.180(1)
§
Nev. Rev. Stat. Ann.
Answer,
2, 2006,
N.Y. Times, Mar.
at C3.
2014);
§
D.C.
47-2853.103
Code
supra
Nebraska,
60.
58.
note
at
you
68.
In
Arizona
can't be a
Interim
Report,
horse
masseuse without
license. See Ariz.
61.
Id.
32-2231(A)(4) (West 2015)
§
Rev. Stat. Ann.
medicine);
(defining practice
veterinary
Id.
§
172 Neb. Admin. Code
182-004.02D
(eligibility for
an
licensure as
Animal Thera-
Id.
pist Massage Therapy);
in
see
also
Animal
Assoc,
Massage
By State,
(citing Kleiner,
Licensing
Laws
Int’l
of Animal
Occupations,
http://www.iaamb.org/
Massage
12).
supra note
Bodywork,
at
(last visited
reference/state-laws-2013.html
25, 2015).
Krueger, supra
65. Kleiner &
note
at
June
aside,
judges
Degree
difficulty
l.”78
approval
get
to
state
tellers70
fortune
the title.
judgmental, hence
exist
to be
presumably
soothsayers would
(though
But
Lone Star State
coming).
see
something
Constitution has
The Texas
sham-
to be a
approval
state
does
require
free-
occupational
to
say
when barriers
in-person
to be
apprentice.71 And
poo
to do
are absurd
have less
dom
an internet
(though
be
auctioneer72
fencing
incompetents than with
fencing out
auctioneer).
you
need
And while
don’t
Mil-
As
economist
incumbents.
Nobel
Texas, you
bingo
to be
caller
license
justification”
observed,
“the
ton Friedman
Ap-
Registry
listed on the
must
pub-
is
licensing
always
protect
for
yell out
Bingo Workers
order
proved
reason”
is shown
lic,
licensing
but “the
letters.73
numbers and
observing
usually
pushes
who
it —
consumers
representing
Thomas
good government,”
those
“sum
vested,
already-licensed practitioners.79
was
inaugural,
in his first
said
Jefferson
words,
power
government’s coercive
injur
other
shall
men
one “which
restrain
As
quash
often wielded
newcomers.
true —but
ing
indisputably
one another” —
appellate
provocatively
regu
judges
two federal
them
free
“shall leave
otherwise
it,
practical effect
rational
industry and
“The
pursuits
put
own
late their
many
regulation
review economic
question,
basis
improvements.”74 Without
inter-
group
justified by legitimate
absence
check on the
rules are
licensure
the demo-
And
that all too
control
safety concerns.
ests
often
public health and
process.
legislature
It
cratic
allows
isolating
point
rule becomes
good
common
reign
subjugate
math
unconstitutionally “irrational” eludes
free
cal-
liberty
im
individual
to the electoral
it is no more
precision.
ematical
But
*33
majori-
politicians,
judges
under the
culus
whims
precise as when
ascertain
ties,
Sum-
a
or the
of factions.”80
when
is “unreasona
self-interest
Constitution
search
means
“proba marizing:
“Rational basis review
or bail “excessive”76 or cause
ble”75
mercy
pillagers.
is at the
property
unusua
punishment
or
“cruel and
ble”77
402.402(b).
See,
§
e.g,, Mass.
ch. 131
73. 16 Tex. Admin. Code
69.
Gen. Laws Ann.
2015)
77(2) (West
("[N]o
pos-
person
§
shall
breeding purposes without
sess a ferret for
Jefferson,
Inaugu-
First
Prеsident Thomas
74.
director....”).
obtaining
license
a
from the
(Mar. 4, 1801),
Writings
ral
in 8 The
Address
(Henry Washing-
A.
3-4
Thomas
Jefferson
("No
1851(2)
§
person
shall
70. See id. ch.
ed., 1854).
ton
money
there-
fortunes for
unless a license
tell
licensing
by
has been issued
local
75. U.S.
amend. IV.
Const,
authority.”).
Tennessee,
§
71. Tex. Occ. Code
1602.267. In
VIII.
76. Id. amend.
shampoo
has
license
a 300 hour instruction-
Technician,
See
requirement.
Shampoo
al
Tn.
IV.
77.
amend.
(last
of Comm. & Ins.
June
visited
Dep’t
2015), https://www.tn.gov/commerce/article/
VIII.
78. Id. amend.
cosmo-shampoo-technician.
re-
Alabama also
practice
"shampoo
quires
license to
as a
Friedman, Free
34-7b-l(21)
Milton Friedman & Rose
To
§
assistant.”
(2014).
See Ala. Code
original).
(emphasis
Simon,
(sur-
Choose
supra
See also
note 54
states,
veying
regulations
in-
trade
in several
States,
Hettinga
F.3d
v. United
cluding shampooing regulations
in Texas
J.,
California).
(D.C.Cir.2012) (Brown,
regulations
joined by
barber
482-83
Sentelle,
concurring).
C.J.
1802.051(a).
§
72. Tex. Occ. Code
guarantee
liberty
plained:
great’
The constitutional
de-
“The
deference due state
respect
more
lot more.”81
serves
economic regulation does-not
judi-
demand
—a
history
cial
to the
blindness
a chal-
Indeed, some
that the focus of oc-
fret
lenged
toor
the context of its adop-
rule
cupational regulation
morphed from
tion
it require
nor does
courts
accept
protecting
unqualified
pro-
nonsensical'explanations
regulation.”82
from un-
protecting practitioners
viders
competition.
acknowledging
wanted
Courts are increas- While
that Williamson v.
ingly asking whether societal benefits are Lee Optical83
Supreme Court’s au-
—the
being
financial
subordinated
bene-
thoritative
treatment
rational-basis
lucky
fits of
enough
those
to be licensed.
scrutiny
poli-
deference
state
—dictates
of Appeals
The U.S. Court
for the Fifth
cymakers, the Fifth Circuit underscored
recently
Circuit
buried the so-called “cas-
“Williamson
upon
insists
rational
3-0 with a n basis,” adding,
Louisiana, siding
ket cartel” in
hypothetical
“a
rationale,
group woodworking
Benedictine monks
hoc,
even
cannot
post
fantasy”
im-
monastery by
who
supported
selling pervious
of irrationality.”84
to “evidence
pine
handcrafted
coffins. State-licensed
A similar casket-cartel
law- was invali-
competition
funeral directors
found
dated
the U.S. Court of Appeals
unwelcome, and the monks were threat-
Circuit,
for the
Sixth
first federal ap-
jail
ened with a fine and
time for breach-
pellate
since the New Deal to
court
invali-
ing
only
Louisiana law that said
state-
regulation
date an economic
for offending
licensed funeral directors could sell “fu-
striking
neral merchandise.” In
economic
down the
liberties -secured
the Four-
law,
anticompetitive
the Fifth Circuit ex-
teenth Amendment.85 The court found no
Id. at
malting
actually
Act of
freedom
mean-
1866—
ingful
overriding point.
And these
—was
protected
Castille,
rights
economic
included the
Joseph Abbey
82. St.
712 F.3d
Rosen,
practice
(5th Cir.),
Jeffrey
chosen
denied, - U.S. -,
trade.
cert.
Translating
Privileges
(2013).
Immunities
sensible connection
al-
requirements
expense
and the law’s
at the
others.
licensing
citizens
safety”
purpose.
and
leged “health
more,
comedi
More and
courts—even
predictable cries
rejected the
court
state’s
scrutinizing
entry
90—are
barriers
ans
alleged
said the
bases
of “Loсhnerism”
regulations. Ear
by occupational
imposed
us with
“striking
came close
for the law
year, a federal district court
lier this
five-week-old, unrefrigerat-
force of a
‘the
attempt to force
rejected the state’s
Austin
con-
The Sixth Circuit
fish.’”86
ed dead
braiding
hair
to meet
a
African
teacher
as
see the law
it was ludicrous
cluded
Isis
regulations.91
state barber-school
attempt
eco-
prevent
but “an
anything
Brantley
why
was
as
her Institute
vexed
“protecting
and that
competition,”87
nomic
2,000-
Braiding
of Ancestral
needed
group from economic
interest
a discrete
chairs,
facility,
foot
10 barber
5
square
legitimate governmen-
competition
how
people
sinks to teach
to twist
Granting special economic
purpose.”88
tal
hair.92
court examined means
braid
preferred
may
interests
be
favors
agreed
requirements
ends and
purpose
government
fa-
common
—“the
sinks,
Why require
were senseless.93
govern-
pastime of state
local
vored
hair,
don’t
example,
braiders
wash
when
ments,”
put
Tenth Circuit
it89—but
just
state law allows braiders to use
doesn’t mean
constitutional.
common
The court refused
hand sanitizer?94
Merely asserting
accepting
—and
—“Be-
blindly
justifi
state’s
accept
purported
so”
government says
incompatible
cause
judicial
It
cations.
actual
Courts
conducted
with individual freedom.
need
contortionists,
inquiry
trying
and observed the state was
ignoring obvious absurdi-
justifications
professions
unlike
‘into a
imaginary
to “shoehorn two
ties
contrive
Ed.,
http://thedailyshow.cc.com/videos/
74
98
at
v. Bd.
347
S.Ct.
able
(1954). Slaughter-House
L.Ed. 873
has been
adygsa/the-braidy-bill.
"strangling
privileges
accused
im-
Amar,
in its crib.”
R.
munities clause
Akhil
Kuntz,
Brantley
See
No. A-13-CA-872-
Rights
The Bill
and the Fourteenth Amend-
SS,
F.Supp.3d
WL
ment,
LJ.
Yale
5, 2015)
(W.D.Tex.
("[T]he regulatory
*8
Jan.
Worse,
legislatures
it emboldened
to enact
... exclude[s]
scheme
Plaintiffs from the mar-
notorious Jim Crow laws.
across
Scholars
.,.”).
ket absent
rational connection
agree
Slaughter-
political spectrum
deeply
understanding
House reflects a
flawed
887-88,
at
2015 WL
92. See id.
75244 at *2.
history.
of constitutional
893-94,
See id. at
107
mold, by
ruling
hair
treating
constitutionality
spark
cial
on
single,
identical
legislative
perform very
set
action.
distinct
braiders —-who
”95
they
if
[barbers].’
were
services—as
Supreme Court
recently
The U.S.
itself
logical
court
“the
disconnect
stressed
regulate
examined how states
professions,
contemplates
in the scheme which
inherent
scrutinizing
licensing
whether
boards do
hair-braiding
schools
existence
by industry
right
minated
incumbents are
hair-
difficult
prohibitively
makes
ly
on'weeding
focused
out scammers and
to enter
the market.”96
braiding
inept practitioners
school
or wrongly focused on
any weeding
the rules
The court concluded
lacked
out newcomers.101
this
Earlier
Carolina,
year
to'
North
Board
relationship
legitimate
“rational
State
FTC,102
Dental Examiners v.
the High
un
government interest”97
were thus
held that a state
board con
dental
under
Fourteenth
constitutional
participants”
trolled
“active market
Amendment.98
be
could
sued
federal
under
antitrust
law
Tellingly,
appeal,
the state declined
for cracking
on
down
non-dentists who
compre-
launch “a
saying it would instead
offering
teeth-whitening
were
treatm
of the barber
hensive review
and cosmetol- ents.103
brought
The decision
smile
ogy
legisla-
statutes” and
[the]
“work
licensure critics
long argued
who had
oversight
proposals
tive
committees
self-regulation
self-dealing
invites
and that
unnecessary regulatory
remove
burdens
licensing
prone
state
regulatory
boards
entrepreneurs.”99
for Texas businesses and
capture
immunity
deserved no
for Sher
Legislative response was swift—and unani-
Act104
man
abuses. Ever since Parker v.
ago
Abbott
days
mous—and Governor
15
80-plus
ago,105
Brown
such
years
boards
Bill
signed
deregulate
2717
hair
House
were deemed outside
Act’s ban on
many
because,
But
braiding.100
cartels,
as with
matters
cartels
unlike traditional
finance),
judi-
(e.g., public
school
it took a
were sanctioned
the state.106 No
893-94,
Brantley,
(2000)
F.Supp.3d at
(describing
comрosition
95.
98
2015
of state
75244,
Clayton Steinagel,
boards).
(quoting
licensing
WL
at *7
v.
1212,
(D.Utah 2012))
F.Supp.2d
885
1215
Clayton
Steinagel,
(quoting
F.Supp.2d
-
-,
1101,
102.
U.S.
S.Ct.
1212,
(D.Utah 2012)).
(2015).
L.Ed.2d 35
96.
Id.
Id.
103.
11110.
894,
97.
Id. at
98.
Morris,
341,
307,
Angela
Against
Braider Wins
State
63 S.Ct.
m
Why?
profession.”127
strong judicial
Because that would
protection
abandonment
“deprive
pursue
his
a lawful
liberty
one
for economic
presaged
vast ex
*39
vocation.”128 Restrictions must have a rea
pansion of government power. Twenty
person’s
sonable connection to the
fitness
years later came the Court’s authoritative
capacity.
explains
High
That
guidance on Fourteenth Amendment re
ruling
Court’s 1957
Schware v. Board
regulation:
view economic
Williamson
Examiners,129
only
Bar
time the Court v.
In
Optical.134,
Lee
Optical,
Lee
licensing
a
has struck down
restriction un Court,
implicitly
while
recognizing
liber
Schware,
der rational-basis
In
review.
ty right
pursue
occupation,
one’s chosen
attempt
Court invalidated New Mexico’s
regulation here,
held
economic
for
—
Party
bar a Communist
member
bidding opticians from putting old lenses
practicing
“any qualification
law:
must
in new frames—would
upheld
be
if the
have a
appli
rational connection
conjure
court could
out of thin
air
cant’s
capacity
practice.”130
fitness
hypothetical
why
reason
might
lawmakers
Uncertainty
have enacted the law.135
has
requirement
The federal rational-basis
decades,
persisted
because,
partly
as
Depression-era upheaval
debuted amid
acknowledges,
the Court
“Our cases have
1934, when the Court in Nebbia v. New
elaborated on
standards
deter
York,131criminalizing the sale of milk be
mining what
‘legitimate
constitutes a
gov
government-approved price,
low the
held
interest.’”136
ernment
federal cir
Some
“a
free to adopt
State is
whatever econom
cuits,
Fifth,
including the
have held it
may reasonably
ic
is
policy
deemed
improper to
promote
welfare,”132
regulate solely to
long
so
it is
insulate in
arbitrary.”133
from competition.137
“unreasonable or
Neb
cumbent business
bombshell,
bia was a constitutional
and its But with a few notable exceptions, like the
127. Id.
require
actually
the law to
make sense. Rath-
er,
maybe,
asks
possi-
it
whether
lawmaker
128. Id.
bly, conceivably, plausibly, imaginably, hypo-
thetically might
thought
good
have
was a
238-39,
232,
752,
129. 353 U.S.
77 S.Ct.
idea.
It doesn't even
if
matter
lawmakers
(1957) (holding
L.Ed.2d 796
com-
former
actually intended to violate the Constitution.
sufficiently
munist
are not
ties
related to the
upheld
long
The law will be
so
as a court can
disbarment).
practice of law to warrant
conjure any legitimate public purpose for the
complication:
Supreme
One
law.
The U.S.
239,
ticulate
(cid:127)
(cid:127)
negate
Must
even purely
citizens
any
a law “if
uphold
and will
there
hypothetical justifications
gov-
for the
that
reasonably conceivable state
facts
infringement
liberty?
ernment’s
a
it.142
could
rational basis” for
provide
No.
Indeed,
“entirely
it is
irrelevant” whether
(cid:127)
obliged
jettison
Are
courts
Texas
justification
purported
for a burden
duty of
truth-seeking
neutrality
“actually
legislat
some
motivated the
law
hoc
help government
post
contrive
Challengers
every
must negate
ure.”143
justifications? No.
it,144
might support
basis that
conceivable
judges
are exhorted
invent a color-
judges
Texas
should discern whether
justification
able
if the one articulated
government
seeking
constitutionally
government falls short. All this ex
constitutionally
using
permissible
valid end
charge
critics
plains why
is less
test
means. And
should do so based
-than
“rational basis”
“rationalize
basis.”
helping gov-
real-world facts and without
The
ernment
invent after-the-fact
rationaliza-
would subordinate concrete
dissents
scrutiny
tions.
I
scrutiny
conjectural
grants
believe the Texas Constitution
truth,
nigh-irrebuttable
requires
of consti-
search for
presumption
earnest
turn-a-blind-eye approach
prevails
It is
review
tutionality.
elastic
where
theoretical,
conceivable,
imaginary justifi-
under the
Constitution.145
federal
Joseph Abbey,
143.
Id. at
138.
215.
H3 2. The property rights. Texas Constitution narrows the ment fragmentation judicial protection given rhetorical, to is logical less than and is an- difference (like rights speech or reli- in principle chored less than in power. “fundamental" gion) and so-called post-New Under picking Deal “non-fundamental" (like rights a living). earn choosing, speech gets preferred status while economic liberty is treated as “a fact of the jurisprudential matter is poor despite the Due Process that courts protective are more some relation”148— Clause’s explicit inclusion of “property” guarantees constitutional than others. (and given High Court’s nullification of One feature of 20th-century juris- bedrock Privilege Immunities Clause in prudence, starting Supreme with the U.S. Slaughter-House). Speech rights get decisions, Court’s no- Deal-era New was to “strict relegate rights scrutiny” gov- nonsense ensure junior- economic to a more varsity behaving ernment is protection echelon of itself while property constitutional servile, rights rights. get pro-government than Nothing “fundamental” treat- federal or ment. requires Texas Constitutions *41 treating rights Certain as “fundamental” example, For when courts decide an Es- and devaluing others as “non-fundamental” challenge Clause tablishment under the judicial applying different levels Amendment, they normally First défer to scrutiny, it is is: but what it Economic a State’s purpose. asserted secular But liberty gets protection less constitutional such is not deference Courts don’t blind.. than rights. other constitutional government’s simply it; take word for irrefutable,' opinion This is not de- they that are careful ensure a “state- monstrable fact. Ever what is uni- since purpose of such be sincere and not a ment
versally known as
famous
“the most
foot-
sham.”149
gender
Same with
classifica-
note
constitutional
law”146—footnote tions.
Court
in 1996 struck down
The
four in Carolene Products in 1938147—the Virginia’s
from Virgi-
exclusion women
Supreme
U.S.
applied varying
Court
Institute,
nia Military
explaining
gov-
that
scrutiny
tiers
to constitutional chal-
justification
asserted
must be
ernment’s.
lenges. Simplified, the Court divides con- “genuine,”
opposed
to one that’s been
rights
stitutional
into
catego-
two discrete
“hypothesized оr
post
invented
hoc in re-
ries:
fundamental and non-fundamental.
sponse to litigation.”150
Upshot: Your favored First Amendment
1
speech rights
stronger judicial pro-
Digital
receive
privacy under
the Fourth
your
tection than
Fifth
disfavored
Amend-
is another
Amendment
constitutional area
ing quickly
review,
pro-
get
on
Court’s
that
judicial
statement
which
deferential
important
tection of
privileges
individuals’ non-federal
laws
personal
that curtail
liberties
target
was a
immunities
state concern. As the
"discrete
insular
minori
notes, however,
ties,”
plaintiffs
get
searching judicial
Court
more
did
scru
separate privileges
tiny).
a
raise
or immunities chal-
lenge.
374, 392,
City Tigard,
148. Dolan v.
512 U.S.
2309,
See,
(1994).
Gilman,
114
e.g.,
Felix
S.Ct.
129
Famous
L.Ed.2d 304
Foot-
note Four: A
the Carolene Products
History of
Footnote,
163,
(2004).
S.
Aguillard,
465
Tex. L. Rev.
165
149. Edwards v.
482 U.S.
586—
(1987).
107 S.Ct.
L.Ed.2d
144, 152 n.4,
147. 304 U.S.
S.Ct.
(1938) (creating
dichotomy
L.Ed.
Virginia,
a
be
United States v.
518 U.S.
affairs,
regulate
tween laws that
economic
116 S.Ct.
L.Ed.2d
lawmakers
endan-
requires
Spray because
believe
Supreme Court
where the
gers
public.
plainly
This law
burdens
putting
rather than
real-world evidence
speech,
on
but it burdens economic
speech,
the scale. Re
thumb
pro-government
judicial protection
Riley
case
v. Calif
less
landmark
which receives
cently, in the
Nonetheless,
citing
than,
concerns for
say, political speech.156
ornia,151 prosecutors,
evidence, in
get
still
safety
preserving
speech
restrictions
officer
commercial
a warrant before
judicial
not need
Courts would
meaningful
did
review.
sisted
(1)
smart-
suspect’s
gov-
an arrested
factors:
searching
examine three
whether
unanimously rejected
phone.
has a “substantial
interest”
ernment
excuses, making
(2)
clear that
prosecutors’
re-
burdening
speech;
whether the
burdening
justifications
interest;
constitutional
actually
striction
furthers
concrete, non-imaginary
rights
must
whether there are less restrictive
experience.”152
actual
concerns “based
ways
goal so
to achieve the stated
was no real and
held there
The Court
little as
speech is restricted as
neces-
that warrantless
documented evidence
sary.157
Government bears
burden
necessary
protect
offic
searches were
judi-
the law receives a serious
proof, and
destruction,
evidence
ers.153 As for
including
cial
whether
it was
pat-down,
unmoved, noting again
Court was likewise
honestly driven
desire to serve
evidence to back
actual
absence
merely
pretext
or was
interests
serve
assertion,
event,
adding
that in
State’s
private
imagine
Now
interests.
different
targeted ways
has “more
law enforcement
law,
banning
Body
one
sale
Axe
those concerns.”154
address
law,
legal
With this
Spray.
deck
*42
differently,
judge
ap-
and a
shuffled
would
rights fall
constitutional
some-
Some
ply
less-rigorous test
law
a
because the
between,
like
where
in
“commercial
speech
not commercial
but com-
targets
speech,” not because
Constitution
activity, a so-called -raon-funda-
mercial
judges
draws that distinction
because
right.
law
mental
Because this
focuses
speech
do. Commercial
—advertisements
activity, government
economic
wouldn’t
speech
other business-related
—is
claims,
hybrid
Supreme
prece-
prove
its health
or show
under U.S.
Court
have
dent,
available,
rights
were
involving speech
(protected
that less restrictive means
vigorously)
rights (protected
judge
that the law’s purport-
and economic
convince
Imagine
not so
law
vigorously).155
pretext
ed
was a
to mask its true
purpose
illegal
Body
makes it
Axe
purpose.158
to advertise
-
-,
Inc., - U.S. -,
134 S.Ct.
Sorrell v. IMS
Health
(2014).
2653, 2672,
L.Ed.2d 430
131 S.Ct.
H5
the Fifth
explicitly protects
But
“noneconomic”
Amendment
“economic” and
property,
As
rights indisputably overlap.
Supreme
the U.S.
the U.S.
Court has
supplanted
has
Supreme
recognized, freedom
the Carotene Products
bifurca-
gov
if
tion with
speech
meaningless
would be
in
rational-basis deference
tak-
ings
bloggers
owning
ernment banned
cases.
Kelo Court stressed its
.The
computers.
policy
Economic
is indis
“longstanding
legis-
freedom
of deference to
judgments,”162
other freedoms—for
lative
pensable
enjoying
and its unwillingness
example,
ad to
buying
“second-guess”163
city’s
Facebook
boost
determina-
(and
your political campaign. A
tion as
justify
decade
to “what
needs
City
days)
three
Kelo v.
New use of
ago
takings power.”164
Justice
London,159
dissent,
takings
scathing
the landmark
ca.se that O’Connor’s
forcefully ac-
backlash,160
colleagues
a massive national
cused
prompted
shirking
her
their con-
duty.165
dissent
Justice Thomas’s
lamented the
stitutional
against
rights
way:
this
bias
economic
A
years
few
later in District
Colum-
gone seriously
“Something
awry with
Heller,166
bia v.
which struck down D.C.’s
interpretation
this Court’s
of the Consti ban on handguns
operable long guns,
Though
tution.
citizens are safe from the
the Court divided on what measure of
homes,
government
in their
the homes
appropriate
deference was
in the Second
not.”161
themselves are
dissent,
Amendment context.
Justice
illustrative,
Kelo
is indeed
ration- Stevens
lauded New Deal-era Justice
al-basis
applies
test
eminent-domain Frankfurter and
ag-
accused
Court of
cases, too,
activism,
notwithstanding
gressive
assurance
chastising, “adherence
footnote four Carotene Products
to a policy judicial
restraint would be far
alleged
Rights
violations
the Bill of
de- wiser than the bold decision announced
heightened scrutiny.
today.”167
serve
Even though
Kelo,
toys.
distribution of sex
commercial
In the
wake
45 states enacted
(11th
Morgan,
property-rights
Williams v.
F.3d 1316
Cir.
reform to curb eminent do-
2007).
Somin,
Ilya
judi-
main.
political
See
involved
case
the collision
sex
*43
Kelo,
4,
(deemed fundamental)
cial
reaction
June
activity
ual
and com
Post,
Wash.
2015,
(deemed
http://www.washingtonpost.
available at
non-fundamental).
activity
mercial
com/news/volokh-conspiracy/wp/2015/06/04/
scrutiny by framing
Plaintiffs aimed for strict
the-political-and-judicial-reaction-to-kelo/.
sexual-privacy
they
the case in
terms because
knew if the
was treated as an
case
economic-
Kelo,
518,
161.
545 U.S. at
S.Ct. 2655
case,
rights
likely
ban
would
survive ra
(Thomas, J., dissenting).
ap
tional-basis review.
Eleventh Circuit
plied
upheld
review
rational-basis
and
469,
162.
Id. at
S.Ct. 2655.
law, viewing
accessing
the case as one about
toys
toys.
using
sex
and
about
sex
Result:
488,
Id. at
English right courts later The Wealth of living early calling earn a to thwart people since Seventeenth efforts exer- cising Century, long dexterity industry before the U.S. Constitution King’s was Court of wish “a of this most adopted. plain violation sacred an Economic in- required property.”173 Bench freedom was invalidated law colonies, guild prized local before apprenticeship with the deed which lacked a guild upholsterer, system, dis- someone could become was extolled *44 missing upholsterers of less as and cries licensed a national wealth creator more practitioners. birthright. who of man’s natural In inexpert warned Coke, highest previewed principle Lord Chief Justice Britain’s Thomas Jefferson he (1613) Eng. Sandefur, Tooley, Rep. supra 168. Allen v. 171. note 23. at 1057; (K.B.) 186, 189. 2 Bulstrode Id. 172. Id. at 1055. 169. Lighthouse 173. Adam
170. R.H. in The Economics Inquiry Smith, An Into the Nature and Coase, (Edwin (1974), in The Market, Firm, Law of the Wealth of Nations The and the Causes 1937). Cannon, ed., (quoting Chief Sir Justice House Random modernized). Coke) (spelling Edward
H7 petitors.179 in the Declaration —the would underscore House right pursue happiness174 lamenting to Efficiency Committee on Government and — “prohibit British from manu- laws that us Reform this anticompetitive impulse found use, facturing, for our own the articles we Texas, in alive well where and licensure lands, our raise on our own own lab- advantages affords “clear to members of our.”175 what? Colonists for- Like were profession, the licensed such as reduced making Why? from iron tools. bidden To competition earnings.”180 and increased enrich British toolmakers. Colonists were The Committee observed that stiffer occu making own hats forbidden from pational regulations rarely originate with Why? from of the fur American animals. advocacy groups; consumer consumer and To enrich British hatmakers. Adam rather, pushed by in entrenched Smith, who choice considered economic dustry to members “less competi secure rights,” “the most sacred inviolable of and tion, job improved greater security, and tendency likewise of observed the trades Committee, profitability”181 The recog by of wages reducing supply raise nizing myriad occupational harms of skilled craftsmen.176 overregulation damage —measured past prologue.177 What is indeed Fast “job growth and consumer choice”182—and 250 years, prized forward almost and a fearing that Texas was headed towards taxi City York now medallion New costs “more, large-scale occupational licensing million, quadruple price just $1.25 programs,”183 made this recommendation: ago.178 But right decade the unalienable Legislature “The implement pro should pursue merely is not happiness right cess proposals regulate review new to possess things or to participate activi- occupations, existing as well as licensing enjoy; necessarily ties we includes the programs, based real and documented our lot in life improve through harm public.”184 to the industry ingenuity. Legislature responded by passing
A raft of modern research Nobel House Bill which creates a mechanism Prize-winning Gary economist Becker and critically existing various scientists examine whether oc- social confirms that practitioners needed, cupational to stifle corn- regulations desire would-be are still phrasing Virgi- Flegenheimer, 174. Jefferson echoed 178. $1 Matt Medallions Sti- Rights, Cábdrivers, nia Declaration written Jeffer- fling the Dreams N.Y. Times, George just son’s friend Mason one month 14, 2013, at Nov. A24. issued, masterpiece before Jefferson's was enjoyment who “the of life and liber- extolled Becker, Gary Competition Theory A 179. S. ty, acquiring possess- with the means Among Groups Influence, Political Pressure ing pursuing property, obtaining (1983). Q.J. Econ., 371-400 happiness safety.” Declaration See Va. (1776), Rights § in 1 Bernard Schwartz, supra 180. note Report, Interim Rights: A Documentary History 234-35 Bill Id. Summary A View the Jefferson, Thomas (1774), Rights British America in The Jef- *45 (John P. Fo- Encyclopedia fersonian ed., 1900). ley Wagnalls Funk & Co. 183. Id. at 60. supra 176. note at 121-22. Smith, 184. Id. at 62. 177. See William act Tempest Shakespeare, The 2, sc. 1. unnecessary. regulations multiple inflict burdens —on those deemed phase out (who goods the Sun- and requires pay new law consumers more the
Specifically, Commission, “an assessing services, in Advisory try to the work them- or do set pro- or occupation (who licenses an agency selves),187 that entrepreneurs on would-be whether, how, fession,” exist- and probe formidable, entry impos- if not find market actually serve regulations ing occupational (who sible), can’t on workers lower-income law also The new public interest.185 the trades), entry-level into on the break to the Com- submit legislator to allows (who crimped public endure econom- wider analysis any pro- for review аnd mission tangible no bene- growth enjoying ic while a new create posed legislation would whatsoever).188 fit occupa- modify existing significantly licensing program.186 tional IV. oblivious, to the iron Courts need be liberty Europe, In charters have been regu- economic truth the political and the granted by power. America has set latory littered with rent- environment power grant- example ... charters who seeking by special-interest factions by liberty.189 ed exclusive, state-protected crave the lives, for- pledged Again, reg- Founders pursue smart their careers. tunes, to birth a indispensable, and sacred honors new ulations are but nonsensical 325.0115(b). findings Legislature review to the before the § The Com- Code Tex. Gov’t legislative of the session. The bill required start next mission is to assess: Commission, requires analyzing also the (1) licensing pro- occupational the whether legislation proposing the creation of an occu- gram: licensing program, pational to determine (A) meaningful, public serves defined unregulated practice whether of the occu- the interest; and pation public be with the would inconsistent (B) provides restrictive form the least interest, public reasonably the can be whether regulation adequately protect that will expected of ini- to benefit from an assurance interest; public continuing professional sets or tial skill (2) regulatory ob- the extent to which the competencies, public and whether the can be jective licensing pro- occupational effectively protected more means other gram may through market achieved 325.023(c)(1) (3). regulation. § than state Id. — forces, industry private or certification programs, or enforce- accreditation Jr., Baetjer, 187. Howard Free Our Markets-A law; ment of other Citizens' 95-96 Guide Essential Economics criteria, (3) licensing if extent to applicable, applicants have ensure that occupational competencies skill sets Licensing supra note Kleiner, Occupations, interest and that correlate with 57, at 53. impact those criteria have particularly applicants, those moder- Madison, (Jan. 19, 1792), James Charters incomes, seeking ate enter the or low Writings (Jack N. James profession; occupation or Madison — ed., 1999). Rakove See also 1 James including regulation, Wilson, impact of States, Study the Law United in the program stimu- extent which Of The Works of James Wilson: Associate Justice competition affects lates or restricts Supreme Court, Professor of Law consumer choice and the of services. cost (James College 6-7 De Philadelphia 325(b)(1) (4). at§ — ed., 1895) Callaghan Witt Andrews & Co. ("Without liberty, law its The new law loses its nature and authorizes Commission's name, oppression. chair Without deny request such a for review on the and becomes name, law, liberty loses its recommendation of executive director. also its nature and licentiousness.”). report requires bill its and becomes Commission to
H9 Texas radical type design: today of nation —one Constitution —then and —ex- co-equal, and separate, competing liberty. three ists to secure deriving Three rival branches branches. power from three words: “We unrivaled A. Both People.” the Texas and federal earlier, As “judicial mentioned the term presume branches will Constitutions legal activism” is a Rorschach op- test. I legislators, be structural adversaries —that activism, pose judicial rights inventing not jealously will their example, guard law- opposite rooted in law. But ex- if making prerogative begins the executive treme, passivism, corrosive, judicial Indeed, power. aggrandizing inter-branch who, activist, judges while not are too— political competition precondition liberties, in preserving the and the active inter-firm advancing competi- economic limits, actually our Framers enshrined. is, judicial tion—that asserting branch The Texas Constitution is irrefutably
judicial power political to ensure that the proscription, in framed imposing unsubtle arbitrarily branches don’t insulate estab- government unmistakable limits on practitioners lished newcomers. power. It models federal Constitution Madison, lead architect of the U.S. Con- in a way: dividing govern- fundamental stitution, his saw bedrock constitutional power ment so each branch checks ensuring mission as that America does not balances others. But as we re- an a limited into “convert unlimited observed, cently “the Texas Constitution Enlightenment philosopher Govt.”190 Mon- step takes Madison further including, tesquieu power likewise warned concen- Constitution, explicit unlike the federal legislative trated: “When and execu- Separation provision of Powers to curb powers person, tive are united the same overreaching spur rival branches to body or in of magistrates, the same there guard prerogatives.”194 The Texas liberty.”191 paid can be no Madison hom- government power Constitution constrains age Montesquieu” to “the celebrated way: another distinctive It lacks a Nec- gave Federalist voice Madi- Clause, essary Proper often invoked to worry: son’s gravest the risk of runaway expand Congress’s powers beyond those majorities trampling liberty.192 individual Moreover, specifically enumerated.195 day delegates Madison turned 85 on the above, it Privileges noted contains a adopted Republic Constitution that, more, Immunities unlike the barely days Texas. “He lived Clause federal version, just enough judicially has never been long see free.”193 nulli- handiwork, just And like Madison’s fied.196 Madison, Spencer Certification,
190. James
Letter to
Bd.
Roane
In re State
Educator
1819),
(Sept.
(Tex.2014).
in James Madison:
Writings,
452 S.W.3d
808 n.38
supra
at
note
II,
Id. at 808 n.39
Const,
(citing
Tex.
art.
191. 1 Charles
Montesquieu,
de
Secondat
1).
§
(1st
Spirit
of Laws from the
Amer.
5th
1802).
London ed.
I,
§
195. U.S.
Const,
art.
8, cl. 18.
(James
192. No.
Federalist
ed.,
Madison) (Clinton
1961) (citing
Rossiter
supra
See
notes 40,
Montesquieu
proposition
for the
that the three
accompanying
text.
intertwined,
government, yet
branches of
do
principle
pow-
separation
violate the
ers).
*47
constitutions
constraints. Our two
tutional
second-
no business
have
judges, we
As
individual
choices,
purposes:
two
when the Con-
to advance
exist
policy
guessing
government. Our
stake,
impolite
through
not
limited
liberty
it is
is at
stitution
liberty
as
saw
Liberties
and state Founders
government.
federal
say “no”
value,
limits
necessarily
natural,
mean
People”
foundational
America’s
“We
very
That’s the
the Government.”
to be exhaus-
rights
our
as too numerous
“We
stop
are written:
gov-
constitutions
Liberty
justifies
both
tively
reason
listed.
abuses,
ratify
them.
not
government
(to
guardrails)
basic civic
erect
ernment
constitutions
duty to our dual
supreme
(to
Our
minimize
government
limits
“secure
purpose
to their shared
freedom).
In oth-
on human
abridgements
—to
us
Liberty”197 requires
Blessings of
words,
charters
our
constitutional
er
dual
—
action's,
constitutionally verboten
to check
majority rule but
not to
exist
exalt
the banner
rubber-stamp them under
not
major-
that limit
prepolitical rights
protect
people
For
to live
majoritarianism.
per-
Majoritarianism cannot be
ity rule.
fit,
they
government
see
their lives
constitu-
to invert our bottom-line
mitted
power
must
powers
exercise
limited
majority,
might of the
premise.
tional
The
an
but with reason. And
force
with
count,
trample
the vote
cannot
whatever
govern-
judiciary
judge
must
independent
our
rights recognized
both
individuals’
actions,
rationalize them.
merely
ment
Constitutions, not
and state
federal
require courts
restraint doesn’t
Judicial
law,
first
the Dec-
mention
our nation’s
of the other
the nonrestraint
ignore
laration.200
branches,
imperil
actions
not when their
in-
people
constitutional
liberties
B.
enjoyment
in their
creasingly hamstrung
Happi-
“Life, Liberty
pursuit
and the
Constitution,
like Madison’s
Our State
ness.”198
handiwork,
with
Federal
is infused
rival branches
genius:
Newtonian
three
“protect
public”
power to
by compet-
synchronous
locked in
orbit
heady
one.199 Government
and fearsome
checking ambi-
ing interests —ambition
general
wel-
charged
promoting
tion.201
fare,
always
consti-
but it must
act within
Const,
"Organic
of Amer-
pmbl.
Laws of the United States
See
Tex. Const.
U.S.
also
(declaring its
mission to safe-
art. I
utmost
ica.” Lincoln describes the Declaration
general, great
princi-
guard
essential
“the
through
just
Independence as a
which
lens
government”).
ples
liberty
free
for in-
laws become
clear—as
framework
terpreting the law—when he calls the Decla-
Independence para. 2
The Declaration of
"apple
gold,”
Constitu-
ration
1776)
(U.S.
governments
(underscoring that
"frame of silver” around it. Abraham
tion the
among
"se-
are
Men” in order to
"instituted
Fragment on
and the
the Constitution
Lincoln,
among
Rights,
cure” our “unalienable
(Jan. 1861),
Union
in 4 The Collected
Works
Life, Liberty
pursuit of
these are
and the
ed.,
(Roy
Basler
of Abraham Lincoln P.
Happiness”).
laws,
Constitution,
1953).
indeed
all
See,
(discussing
supra
notes 12-18
Buck v.
independently of the
must not be considered
Bell,
71 L.Ed.
S.Ct.
purpose
designed:
for which
ultimate
(1927),
upheld
forcible steriliza-
unhinge democracy, but to secure liber-
not to
"feeble-minded”).
tion of the
ty-
Congress placed the
of Inde-
Declaration
201,In
Certification,
re State Bd.
Educator
page
pendence
volume 1—of
outset—
452 S.W.3d
Code,
heading:
States
under this
the United
government
before
siphon
Isaac Newton died
James
incursions that
whát
*48
Madison, the
of
U.S.
Constitu-
Father
Thomas Jefferson called our
degree
“due
tion,
born,
Founders,
our
even
was
of liberty”203 “siphoning that often occurs
—
federal,
political
both state and
understood
subtly,
drop-by-drop gentleness
with such
physics: “power
one
by
seized
branch nec-
as to be imperceptible.”204
essarily
power
by another.”202
means
ceded
Police
is
an
power
undoubtedly
attribute
Motion,
Newton’s Third
of
while a
Law
of
sovereignty,
.state
but sovereignty ulti-
law, also
as
physical
operates
political
mately
in “the
of
people
resides
the State
one branch of government
law. When
ex-
of
The Texas
Texas.”205
Constitution lim-
force,
equal
erts a
there occurs
and
government encroachments,
its
and does
opposite counterforce.
Laws of Con-
so on purpose.
Rights
“Our Bill of
is not
require
stitutional Motion
these rival
fluff;
hortatory
mere
it
a purposeful
is
stay
sphere,
within
branches
their
flex-
power.”206
check on government
And ev-
ing
power
so
competing forces
is nei-
Texans,
eryday
and
courts that serve
ther
nor ceded.
seized
them,
vigilant.
must remain
Government
Fyamers
Our
that govern-
understood
will
always insist
acting
pub-
inclined to
its
in-
ment was
advance
own
lic’s greater
but as
good,
Justice Brandéis
terests,
of
point
even
ham-fisted
warned in his now-celebrated Olmstead
bullying,
why
is precisely
the Con-
“Experience
dissent:
should teach us to be
keep government
stitution
written —to
was
guard
protect
most on our
liberty when
leash,
on a
People.
not We the
But indi-
government’s
purposes are benefi-
liberty pays the
when
price
vidual
our
cent.”207
ingenious system of checks and balances
solving a
sputters, including
judiciary
problem,
Before
must
you
when the
sub-
first
liberty to
congeries
group
ordinates
of
define it. The Lone Star State boasts a
spirit
majoritarian
daring
interests
that dictate
of
rugged independence,
out-
Daily
undeniably,
comes.
there
virtues
to personal
exist
essential
and economic
Seal, Inc.,
v. Crown Cork &
Robinson
335
(Tex.2010) (Willett, J.,
165
S.W.3d
con-
203. Letter from Thomas Jefferson to James
Or,
curring).
18th-century
philosopher
Madison,
(1787),
Paris
in The Jeffersonian
cautioned,
seldom,
David Hume
"It is
A
Encyclopedia:
Comprehensive
Collection
liberty
any
kind is lost all at once.” Rath-
(John
277
P.
the Views
Thomas Jefferson
er, suppression
upon [people]
in
“must steal
ed., 1900).
Burke,
Foley
See also Edmund
by degrees,
disguise
must
itself
a thou-
Speech Moving
His Resolutions
Concili-
shapes,
sand
in order to be received.” David
Colonies,
22, 1775,
ation
with
Mar.
(1741),
Liberty
Hume, Of the
of the Press
Writings
Speeches
Burke: Selected
Edmund
(Knud
Essays
n.4
David
Political
Hume:
ed.,
(Peter
Doubleday
J. Stanlis
&
ed., 1994).
Haakonssen
1968) ("In
Co.
this character
the Ameri-
predominating
cans a love of freedom is the
205. Tex
Const,
pmbl.
distinguishes
feature which marks and
always
jealous
whole: and as an
ardent is
Robinson,
(Willett, J.,
ville’s
V.
Texas,
equally to 2015
where “administra-
may be the
baseball
national
[WJhile
though doubtless well
despotism,”
tive
_
pastime
citizenry, dishing
out
toll on
meaning, inflicts a real-world
hon-
special economic
to certain in
benefits
est,
Texans:
hardworking
state industries
remains
favored
shattered,
man is not
but
The will of
pastime
local govern
state and
bent,
softened,
guided;
men are sel-
ments.211
act,
they
it to
but
dom forced
are
among
Governments are
“instituted
acting.
from
constantly restrained
Such
preexisting,
Men” to “secure”
“unalienable
power
destroy,
pre-
not
but it
does
Rights.”212
Our federal
Texas Consti-
existence;
tyrannize,
it
vents
does
liberty,
tutions are charters of
not well-
enervates,
it compresses,
extinguish-
springs
government power.
of boundless
es,
till
stupefies
people,
each na-
adroitly
political power
Madison
divided
nothing
is
better than a
tion
reduced
prized
People” sys-
because he
a “We the
animals,
flock of
timid
industrious
tem
over a
that extollеd citizens
monarchi-
is
government
shepherd.209
subjects.
cal
system
rulers and
conception of its own pow-
Government’s
government
trick
give
requisite
its
was
er as
is
But
limitless
hard-wired.
under
powers
structurally
hemming
while
Constitution, government may
the Texas
power
wouldn’t
so
fallible men
become
only pursue constitutionally permissible
despotic
hereditary
as
as the
monarchs
protectionism,
ends. Naked economic
and fought.
had fled
strangling hopes and
dreams
bureau-
liberty
cratic
is
tape,
“deeply
red
one of them. And
Economic
rooted
barriers,
stemming
tradition,”213
such
often
this
history
inter-
Nation’s
politics,
engage
est-group
productive
often insurmounta-
enter-
rungs
ble
the lower
prise
Texans
is as central to
individual freedom
barriers
at the
Democracy
enforced
enacted
behest of
Tocqueville,
de
in Amer-
Alexis
1994).
(P.
entrenched,
Bradley
ica ed.
politically powerful interests.
Harris,
v.
F.3d
211. Powers
(10th Cir.2004).
degree
210. To
four”
"footnote
of Car-
says
otene
“discrete and insular mi-
Products
Independence
Declaration
political
212. The
norities”
special
in the
arena deserve
para.
(U.S. 1776).
judicial
tough
imagine
protection,
group
majoritari-
advantaged
more dis
political
Glucksberg,
Washington
process
entrepre-
521 U.S.
than would-be
calling by Byzantine,
neurs denied their
State-
117 S.Ct.
dition trade was ration- [Legislature’s] decision rights threading their substantive violates ally legitimate government related to privileges, or immuni- liberty, property, id.; interests,” ties course of without due law. (cid:127) arbitrary it is “clearly and unreason- notes, this “not As the Court has Court able,” id. entirely in
been consistent” its articulation by which of the standard we review the precedents These difficulty illustrate the constitutionality regulations economic articulating appro- the Court has had provision. course under due law priate prior I would our standard. read Through years, at Ante exam- descriptions provide together, that law variously ple, we have said that laws are violates the course substantive due law presumed to constitutional a law is be provision only arbitrary if it is and unrea- only if: invalid sonable, oppressive, because therefore (cid:127) is and in it “unreasonable contraven- has, legiti- no relationship it rational right,”
tion of common Milliken Court, government mate interest. The City 54 Tex. Weatherford, contrast, Council that a law is invalid if its holds (1881); “purpose arguably rationally not be could (cid:127) justifying governmental to a inter- rights legitimate invades' “without related
occasion, whole, unreasonable, arbi or in est” considered as [its] “when actual, as applied insurmountable, real-world But the effect bar cannot be challenging party arguably could be if application any regulatory to, rationally or is so related burdensome licensing scheme ever constitutionally were oppressive light of, to be in govern- invalid, this I one is. need not repeat my at (emphasis mental interest.” Ante colleagues’ descriptions, because everyone added). words, the Court other holds (including dissenting the State and both law is if it is invalid “burdensome” Justices) agrees requiring eyebrow “oppressive light legitimate in of’ the to complete threaders the current require- interest, governmental even if it is ration- ments obtain necessary to an esthetician’s ally related to that As interest. the Chief obviously license “is too much.” at Post dissent, Justice notes in his “[n]either this (Hecht, C.J., dissenting); post at 142- nor other the Court can find has (Guzman, J., dissenting). Certainly, ‘oppressive’ used as a ever test sub- a fair “[i]f there is room for difference 126; process.” stantive due Post at see opinion necessity as to the and reasonable- Co., Hous. & Ry. Tex. Cent. S.W. at 658 legislative ness of a enactment on a subject (holding prohibits Constitution laws that which lies within domain of police rights justify- invade substantive “without power, the courts will hold it void.” occasion, unreasonable, ing or in an arbi- Richards, State v. 301 S.W.2d trary, oppressive way,” op- not “or (1957). But no there is difference of opin- way”). pressive ion requiring eyebrow here: threaders to obtain an esthetician’s license is neither agree I Court’s new burden- necessary Requiring nor reasonable. some/oppressive standard “loose”—too “loose,” fact, training them to obtain analysis useful our sanitation and rational, types safety of these challenges. requiring of constitutional them post (Hecht, C.J., dissenting). get See an esthetician’s license is not. Determining or “op- what “burdensome” suggests The Chief that “there Justice pressive” means in this context will be *52 is ... evidence from which the Legislature nigh impossible, we unless use those could reasonably conclude that re- the terms, prior as opinions, we have in our to quired testing instruction and would fur- to refer the that result from burdens a law goal public ther protecting its health that is not to rationally legitimate related a safety through regulation the of cos- Like, government interest. Justice Guz- metology.” agree 140. I pro- Post that at man, “I significant have doubts that this tecting public safety health and is a legiti- is standard workable in Post at practice.” interest, government mate but I not do dissenting Justices, 142. And like both I agree eyebrow that requiring threaders to burdensome/oppressive believe the stan- requirements meet for the current obtain- makes it easy dard too for to invali- courts ing rationally an esthetician’s license is regulations personal date for their own related to that achieving interest. Under (Hecht, policy reasons. at post See dissenting approach, the if the C.J., Justices’ (Guzman, J., dissenting); post at 141 Legislature to require eyebrow decided dissenting). Because, as Justice Guzman license, a notes, to medical threaders obtain we courts cannot not “legis- should uphold would have to that bench,” from decision because post late the at the bar that also licensing be to scheme in very high, “instructfe] should set ensure that it is Constitution, general safety practices.” indeed the and not sanitation and merely a court, C.J., that (Hecht, dissenting). a law. Post at 140 invalidates states, scheme, in to the also found ten other impose ex- may
It be convenient eyebrow applied as to licensing eye- unconstitutional isting scheme esthetician is, Court, threaders, threading. trouble this like my in it is also view brow but Court, unreasonable, Supreme has re- United States and therefore arbitrary and a with rational doing peatedly not held that statute so is ration- oppressive, because pro- basis does violate substantive due legitimate government ally related cess, applying that will public health and standard here promoting in interest about, Casting help second-guess Threaders. should not safety. Courts end, up “oppressive”, as the Court comes Legislature, in the substantive due authority “the final brand-new entrant agrees, Chief Justice Court nor process lexicon. Neither this apply the Constitution interpret and any at other the can find has ever used Judiciary[.]” Post Court belongs to the authority lightly “oppressive” is “not as test substantive due Although (Hecht, C.J., exercised,” process. great is at Which because post grateful Court is now as the is it free—as free dissenting), the Court exercise public safety Threaders health here. regulation up make substantive due —to judgment. I concur in the therefore process from scratch. Hecht, joined by Justice Chief Justice eyebrow Whether threaders need 750 Brown, dissenting. Guzman and Justice training, only 430, hours’ or practice their on the is not for trade which, This one those cases once say, Legislature, long us to as the whom it wants to Court decided say, making it is job whose rational win, the less the better. Result is an said protect public safety. effort to health inapt it’s shaping principle; sup- tool As one acknowledges point, the Court posed to work way the other around. And “it second-guess [legis- is not for courts to mutilated, principle when it up being ends agency] lative and decisions as the ne- longer guide can no be used to other re- cessity for training extent it sults. turns out Since required for types should be different process thinks substantive due means providers.”1 ques- commercial service means, judges say it whatever would be whether, tion for us is by requiring enough best to leave rather than bad alone training, Legislature hours’ has violat- pretend the idea has support process by depriving ed substantive due history. Constitution’s text or The Court eyebrow of their threaders fundamental passes runs risk that what for constitu- *53 liberty without the of law guar- due course analysis tional here be around will seen as by the anteed Texas Constitution. just picking out of words the air. yoke The Threaders deserve to have the the final authority interpret Because off, regulatory state belongs thrown apply Constitution to the shattered, only themselves, shackles on their free enterprise Judiciary^ people by amendment, in brevity is not the hall- can alter although constitutional short — mark of today’s writings process some of decisions. stick Court’s substantive due —to it to way Judiciary’s authority man. what The And better to do is enormous and all that than by having judges lightly Powell hold the be exercised. Justice 80-year-old history State’s of sub cosmetology licensing once observed that “[t]he 1. Ante at 89.
127 process privacy counsels caution and used establish a stantive due history to which he re restraint.”2 The to be in otherwise found the Constitution.6 Supreme Court’s own ad ferred was Are restrictions on abortion “oppressive”? be process with substantive due venture How about restrictions marriage? Un- York,3 in Lochner New ginning with by standard, any meaningful constrained a abrogated which the Court state statute process judges substantive due allows “unreasonable, unnecessary arbit liberty according define personal ending rary”,4 and with United States v. preferences. policy History and reason Products in Company,5 Carotene which the gone warn the Court has too far. a established statute I respectfully dissent. upheld. will rational basis The Court disregards experience federal courts’ I process
with substantive
in
due
Lochner
progeny,
unprec
and its
invents
new test
Legislature
regulated
cosmetic
jurisprudence,
in American
edented
years.
impe-
services
80
The original
government
in
new
ushers
era
concern
public
tus was
health and safe-
judges.
ty.
public,” the Legislature
“[T]he
found
Court,
1935,
con-
and Justice Willett’s
Act of
“is
Cosmetology
daily
insufficient
curring opinion
championing
exposed
its wild
disease due
care
liberty,
hygiene
economic
oblivious to
seem
as to sanitation and
[and should be
liberty
reality
impor-
protected by
that social
is no less
inexperienced
Act]
unscrupulous beauty
tant. The same substantive due process
parlors
and beau-
eyebrow
that can free
threaders
from on-
ty culture schools”.7 Prоtection of the
training requirements
erous
can
also be
health and welfare
remains
driv-
28, 1971,
R.S.,
1036,
Regents
Ewing,
May
Leg.,
Mich. v.
Univ.
474
Act of
62d
ch.
214, 229,
507,
49,
3389,
§
U.S.
106 S.Ct.
1971
(adopt-
L.Ed.2d
Tex. Gen. Laws
J,
(1985) (Powell,
(citations
concurring)
ing
repealing
omit
new Penal
Code and
former
ted).
articles);
24, 1973,
R.S.,
May
Leg.,
Act of
63d
399,
5,
883, 995,
§
ch.
1973 Tex. Gen. Laws
45, 58-59,
539,
S.Ct.
198 U.S.
49 L.Ed.
996a,
(adopting
996c
a new Penal Code and
(1905).
transferring
provisions
certain
to the Revised
Statutes);
1999,
13,
May
Civil
Act
76th
56, 25
Id. at
S.Ct. 539.
R.S.,
388,
1, 6,
Leg.,
§§
ch.
Tex. Gen.
1431, 2182-2206,
(adopting
Laws
2439-2440
144, 152,
778,
5. 304 U.S.
58 S.Ct.
82 L.Ed.
Code,
Occupations
including Chapter
(1938).
1602,
8451a);
repealing
former article
28, 2005,
R.S.,
May
Leg.,
Act
see also
79th
See,
Connecticut,
e.g.,
Griswold v.
1.01, 6.01-.02,
§§
ch.
2005 Tex. Gen.
85 S.Ct.
ing salons, schools, practitioners and Beauty by depila- body hair from the use fluous prevent rules to subject to “sanitation Act or revised tories15 tweezers”.16 The contagious infectious or of an spread discriminating, creating five more was disease”,9 compli- to ensure inspections restric- classes licenses with different ance,10 investigation of com- public and a holder tions on the activities Act it unlawful made plaints.11 engage.17 Training requirements could or teach cosmetolo- practice, provide, 1,500 from to 150 hours ranged down any prac- to include gy broadly defined — hours,18 applicants pass had to written body12— beautifying upper for tice then, practical examinations.19 Since re- Applicants a license.13 were without Legislature repeatedly adjusted has 1,000 training hours of quired complete training re- beauty the kinds licenses at a licensed school culture pass examination.14 now six quirements for each.20 There are training required licenses with classes 1971, Legislature rewrote 1,500 ranging hours to 320 hours.21 expanded Act. An of cosmetolo- definition Comm, Analy- depilatory tempo- "a Org., on Gov’t Bill 15. A cosmetic for the 8. See House sis, 384, rary Leg., 66th removal of undesired hair”. Tex. S.B. R.S. Webster's (“The regulation primarily need has been Dictionary New International Third protection health based on the Comm, welfare.”); 28, 1971, R.S., Public May House Leg., Act of ch. 62d Health, 127, 3389, Leg., 1036, Analysis, 1(3)(C), § Bill Tex. 69th S.B. 1971 Tex. Gen. Laws (1985) ("The 3389, regulation need for R.S. former art. codified as Tex. Pen. Code 734c, protection l(3)(c). primarily § based on of the been welfare.”). public health and 13-17, 17. Id. §§ Tex. at Gen. Laws § 1603.102. Occ. Code 3392-3394, Tex. codified as former Tex. Pen. Code 734c, §§ art. 13-17. 1603.104, 1603.103, 10. Id. §§ 18. Id. 51.252; 11. Id. § § see also id. 1603.151. Laws, 4(d), 13-17, 19. Id. §§ at 1971 Tex. Gen. 25, 1935, R.S.,
12. Act
Apr.
Leg.,
44th
ch.
3391-3394, codified as former Tex Pen. Code
304,
116,
3(a),
§
129 2005, Legislature In of assigned skeptical the the Department’s position,28 regulation cosmetology issued, of but after the decision the Legisla- Department Licensing Regulation of and cosmetology ture amended the definition (“the Department”),22 primary “the state “removing superfluous include hair from responsible oversight for agency body depilatories, a person’s using prepa- businesses, industries, trades, general and rations, or tweezing techniques” .29 The occupations regulated by that are the state Department regulations then аmended its assigned department- by “tweezing techniques” define “the legislature.”23 Department The is man- by extraction hair from the hair follicle by gov- an aged executive director24 and instrument, ... appliance use of an or erned the Texas Commission of Licens- implement ... ... made thread or oth- (“the Commission”).25 ing Regulation er material.”30 comprised The Commission is of seven Department requires an esthetician appointed by members the Governor and specialty threading.31 license for li- Senate,26 whom confirmed each of cense covers various skin care treatments representative general must be “a cleansing, such as facials and “beautifying public.”27 soon The Commission became face, neck, a person’s or. arms” prepa- eyebrow thread- practice aware ing, rations other began products, removing in to insist threading superfluous hair regulatory be included from the skin.32An appli- scheme like forms of cant for an specialty other hair removal. esthetician license case, a 2011 In the court of appeals complete was must hours of in a instruction 2005, 28, R.S., May Leg., '‘beautifying 22. Act 79th person's ch. volves using face”' 798, 1.01, 6.01-.02, §§ "administering "appliance”, Tex. Gen. Laws a facial treat 2734, 2735, ment”, (adopting Chapter "removing superfluous hair 2759-2760 Occupations repealing person's body using depilatories”. 1603 of the Code and See Tex 1602.002(7), 1602.002(8), amending provisions Chapters §§ related Occ. Code 1602.002(9). 1602); affirming temporary see Tex. in Code Occ. concluded, § junction, 1603.002. appeals court of inter alia, reasonably that the trial court deter 51.051(a). § 23. Tex. Occ. Code probable mined Khan had shown "a recovery plain language based 51.101, §§ 24. Id. 51.103. Khan, 182882, of the statute”. 2011 WL 51.051(b). *8. § 25. Id. 51.052(a). §
26. Id. R.S., May Leg., 29. Act of 82d ch. 1241, 12, § 2011 Tex. Gen. Laws 3323- 51.053(a). §Id. (emphasis original) (amending.TEX. 1602.002(a)(9) § Occ. to substitute Code Khan, 03-10-00160-CV, No. Kuntz "tweezing techniques” "mechanical (Tex.App.-Austin, WL *7-8 Jan. tweezers”). (mem. pet.) op.), http:// no available at www.search.txcourts.gov/Case.aspx?cn=03- (Feb. 10, 2012), Reg. Tex. interlocutory 10-00160-CV&=coa03. In- an 83.10(36). § codified at 16 Tex. Admin. Code appeal partial from the trial court’s denial governmental plea ju defendants’ to the § 31. Tex. Occ. (eligibility 1602.257 temporary injunction barring risdiction and Code license). specially taking any esthetician defendants from action to further investigate, regulate, disrupt or otherwise business, 1602.257(a) Department argued (setting § Khan’s out the services eyebrow threading practice constitutes the that the holder of an esthetician license is cosmetology ways: threading perform). in three in authorized to *56 school,33 above; subjects these account half the listed beauty culture licensed “operator prerequisite 430 of the hours. an license” required for hours “any practice performance allowing the pass must also a written applicant An The instruction for an cosmetology.”34 practical The exami- and examination.36 covers the fol- specialty license esthetician sanitation, safety, and di- nations on test subjects35: lowing ability to as well as the sinfectant criteria orientation, 50 hours and laws... rules services. Hair removal perform various sanitation, safety, and first aid...40 exam, part practical though thread- hours not, applicant may use ing is .90 hours anatomy physiology.. and her hair-removal threading demonstrate treatment, cleansing, masking, facial ability.37 therapy.. hours .225 regulations eye- Cosmetology require .25 superfluous removal.. hours hair threaders, cosmetologists, like other brow machines, and electricity, equip- related liquid or hand to wash them hands use a ment. ..75 hours performing sanitizer before services makeup... 75 hours customer; dispose single-use on a all chemistry... hours come in with the items that have contact hours care of client... 50 skin; bags client’s store thread in sealed management.. hours .35 clean, dry, and containers in a covered hours therapy... aroma clean, area; storage and debris-free and nutrition... 10 hours disinfect, all multi- and sterilize sanitize 10 hours psychology... color prior Regula- use to each items service.38 require cosmetologists tions further school, Depending training can to clean the skin estheticians client’s be- months from nine sixteen cost take performing hair fore removal services.39 $3,500 for a anywhere junior Special must taken with precautions $22,000 college private for a school. lotions, creams, astringents, items such as required part Threading is not a of the subject curriculum, preparations, which are other generally “super- covers removal”, Single- cross-contamination.40 only possible hair fluous handful apply products— use items used these threading. schools offer instruction tissue, Health, safеty, such cotton or cotton pads, sanitation issues part recep- first five in trash subjects covered as balls—must be discarded 1602.257(b)(3). threading requires § technique and the two Id. hands. But the record that it is never- shows 1602.254(a) necessary theless that the skin be held (permitting "any prac- §§ client’s Id. (b)(3) hours). during threading prac- taut (required that the usual cosmetology”), tice of tice is the client to her own skin to direct hold threading during process. taut The rec- 83.120(b) (esthetician § 35. 16 Tex.Admin.Code ord not tell us whether or not this would curriculum). does during suffice the examination. 83.21; 83.20(a)(6), (b)(6), §§ Id. also see 83.102(c), (f), (d), §§ 38. 16 1602.254(c)(3), Admin. Code §§ Tex. Tex Occ. Code (d), (e), 83.105(a), (e), (f). 81.104(a), (c), 1602.262(a)(2). 83.105(b). § 39. Id. argue 37. Petitioners could not do so required because the examinee "hold hairs, removing 83.104(g). § skin [client’s] taut” while *57 emptied daily kept clean tion. that is The Threaders assert that tacle Texas’ using plastic liners.41 by washing regulation Fa- of cosmetology “places sense- beds, chairs, cial must be headrests eyebrow less burdens on threaders and disinfected before service is cleaned and threading any businesses without actual Regulations provided to a client.42 also public benefit to health safety.” But provide procedures follow specific to when- acknowledge Threaders that Texas’ cosmetology ever a service causes bleed- regulation longstanding cosmetology, of in- ing.43 removal, cluding superfluous hair is need- protect They ed to acknowledge health. ar- The Threaders that gue only In that threading poses health risks. the trial excessive.
court,
physi-
from a
they offered evidence
(no
cian,
Dr. Patel
relation
Petitioner
II
Patel), that
removing
Ashish
hair from
record,
regulation
On our
Texas’
portal
through
its
opens
follicle
which threading
misguided
seems excessive and
can permeate
bacteria or a virus
skin.
as a
I
policy, though
matter of
hasten to
threading may
Dr.
that
opined
Patel
lead
add, nothing of what prompted
regula-
“redness, swelling,
itching, inflammation
tion is before us. We have conducted no
follicles, discoloration,
of the hair
and ...
investigations
hearings.
and held no
As in
superficial bacterial and viral infections.”
case,
we know what
parties
have
threading
She
that
testified
could cause
us,
told
nothing
more. This distin-
spread
warts,
infections
as flat
such
guishes
Judiciary
Legisla-
from the
lesions
as
skin-colored
known
molluscum
ture.
ill-equipped
We are
to set policy
pink eye,
contagiosum,
ringworm, impeti-
no way
summoning
because we have
go,
staphylococcus
and methicillin-resistant
various
for input
interests
or exploring all
(often
infection”).
aureus
a “staph
called
record,
But on
considerations.
this
opined
She
that
threader’s failure
use
obviously
threading regulation is
too much.
appropriate
practices
sanitation
—such
using disposable
properly,
materials
clean-
Is it also unconstitutional? Federal and
station,
ing
using
the work
effective hand- Texas
protections
constitutional
of due
washing techniques,
correctly treating
process
closely
related. The Fifth
skin
expose
irritations
abrasions —can
Amendment to the United States Constitu-
threading clients
infection and disease.
tion, adopted by Congress in 1789 and
She also testified that
health
these
risks
later,
years
pro-
ratified
the states two
fully
can
giving
be
addressed
threaders
person
deprived
vides that
shall
no
“be
training
one
hy-
hour’s
sanitation and
life, liberty,
property,
pro-
without due
giene.
cess
law”.44 The Fourteenth Amend-
ment,
1868, prohibits
ratified
the states
that,
allege
as applied
The Threaders
from violating
guarantee.45
the same
them,
cosmetology licensing
scheme
between, in
first
is,
Constitution for
process
violates substantive due
—that
provided
of Texas
that it
State
deprives
liberty
“[n]o
them economic
deprived
citizen of this State shall
without
course
law in violation of
be
due
I,
life, liberty,
property
Article
19 of
except by
Section
the Texas Constitu-
...
[or]
83.102(1), 83.104(e).
§§
44.
Id.
V.
Const,
amend.
83.104(c).
§
Id.
XIV,
§
45. U.S.
Const,
amend.
§83.111.
n
theory,
I
agreed
I
of the land.”46 The
whether
law
due course
study
it further and
desire
I,
should
19'of the
Article Section
provision is now
mind.
I
making up my
But
long before
Constitution.
my duty,
do not conceive that
strongly
my
I
believe
because
A
disagreement
nothing
has
agreement or
that Texas’
recognized
This Court
*58
majority
a
right
the
do with
protects
guarantee
of law
both
course
due
opinions
law[.]
It
embody their
rights.47 But
procedural and substantive
of this court
by various decisions
settled
applying
sub-
mindful
have been
we
state laws
constitutions and
state
to economic
process doctrine
due
stantive
ways
may regulate
many
which
life
recognized
with
met
regulation
never
injudi-
legislators
we
think as
might
as
Supreme
States
success.
United
this,
tyrannical as
you
cious or if
like as
in its view of the
has vacillated
Court
equally
with this intеrfere
which
protection.
process
scope of federal due
liberty
Sunday
to contract.
with the
York,
Supreme
the
v. New
In Lochner
ancient exam-
usury
laws and
laws are
view, holding
famously took a broad
ples
embody
....
laws
Some
these
regulation
bakers’
that New York’s
prejudices
or
which judges
convictions
violated the Fourteenth
working hours
not.
likely
may
to share.
But
Some
implicit right of
Finding an
Amendment.48
to embody
a constitution is
intended
Constitution,
contract in the United States
particular
theory,
a
economic
whether
Court concluded
wheth-
Supreme
paternalism
organic
and the
relation of
regulation deprived
er the state
bakers
or of
to the
laissez
citizen
State
this
it is:
depends on
right
whether
people
It is made for
of funda-
faire.
reasonable,
fair,
appropriate
exer-
views,
differing
mentally
acci-
state,
police power of the
or
cise of the
finding
opinions
dent of our
certain
nat-
unreasonable, unnecessary
an
[rather]
ural and familiar or novel and even
arbitrary
interference with
judg-
not to conclude our
shocking ought
personal liberty
his
the individual to
question
ment
whether stat-
upon
into
contracts in
or
enter
those
rela-
embodying
conflict with
utes
them
may
to labor
seem him
tion
which
of the
Constitution
United States.50
necessary
for the
appropriate
support
proved
Subsequent cases
true Holmes’
family[.]49
of himself and his
warning that a mere reasonableness stan-
Holmes
Justice Oliver
dissent-
Wendell
process
dard for substantive
was
due
un-
ed, warning:
practical-
that judges
workable and
cannot
upon
ly
This case
decided
economic
or legally constitutionalize economic
large part
theory
country
theory.51
pro-
LochneYs
due
substantive
a question
not entertain.
If it were
does
cess
soon
adventure
ended.
Const,
I,
75-76,
(Holmes, L,
§ 16.
Id. at
48. 198 25 S.Ct. 49 L.Ed. "public able sale was not a because the of ice regulated); business” that could be so Louis Liggett Baldridge, 49. Id. S.Ct. 539. K. Co. v. 113- later, years with a Thirty-three Supreme particular thought.... school Lochner, stating matter-of- Court recanted protection against For legisla- abuses factly, always as if it have been should people tures polls, must resort obvious: not to the courts.53 affecting legislation ordinary
regulatory
not to
pro-
transactions is
commercial
B
unless in
nounced unconstitutional
not,
Constitution does
United States
gener-
light of the facts
known
made
course,
prohibit
experi-
states
assumed,
ally
it is of
a character
such
process
menting
substantive
due
preclude
that it
assumption
rests
' constitutions,54
own
based
upon
rational
some
basis....52
a bit of
Twenty years
Texas has done
that.
This requirement
regulation
that economic
ago we summarized the
law thusly:
case
only
relationship
need
a rational
bear
*59
Texas courts have not
consistent in
been
legitimate state interest
is far more defer-
a
of
articulating
standard
review under
legislatures
ential to
than
state
Lochner1s
the due course clause. Our courts have
reflecting
reasonableness
test. Later
on
sometimes indicated
19 pro-
that section
era,
of
passing
the Lochner
Justice
guarantee
vides an identical
to its
Douglas
feder-
Supreme
wrote
Court:
al
process counterpart.
due
Under fed-
gone
day
when this Court uses
process,
eral due
a law that does not
of
Due Process Clause
the Four-
rights
affect fundamental
or interests—
teenth
to strike down
Amendment
state
such as
legislation
the economic
at
regulatory
laws
issue
business and industri-
conditions,
if
al
here —is
a
they may
merely
because
be un-
valid
bears
ration-
wise,
improvident,
relationship
or
al
harmony
legitimate
out
a
state in-
114,
57,
(1928) (prohi
respect
bargaining
73
power”); compare
49 S.Ct.
L.Ed. 204
with
416,
412,
423,
anyone
pharmacist
Oregon,
bition on
Muller
208
not a licensed
v.
U.S.
28
324,
(1908) (limitation
owning
drug
pharmacy or
store
S.Ct.
terest. process challenge to articulate “rational stantive due attempted our Court course stan- in independent ly legitimate purposes state due related our own dard, courts have character- which some this vital res managing regulating rigorous than federal more ized as v. San Antonio City ource.”58 standard.55 applied Park Properties, we TPLP Office city regulat basis street the rational test But, the federal courts since the decades in test, that the explained proper we have ions.59 basis We adopted rational rationally actions quiry far from that “is whether standard. not wandered case proper Richards —the relied to a exer Even State v. could have related been support the Threaders principally May police power.”60 cise of its And scrutiny regula- heightened economic we Sunnyvale, upheld hew Town reasoning and result tion—the Court’s ordinance, explaining: zoning legislation to the issue. were deferential zoning applicable A ordinance generally provision authorizing concluded We process will substantive survive due been used of a vehicle had forfeiture challenge designed accomplish if it is own- of a crime without the in furtherance objective government’s po- within the Tex- knowledge did contravene the er’s relationship power and if a rational lice explained: We as Constitution.56 ordinance its exists between the *60 necessarily large A is vested discretion inquiry This does purpose. deferential only not Legislature in the determine on the not focus ultimate effectiveness public require, what interests of the the ordinance, but on whether the enact- the necessary the measures are but what ing body could believed rationally have If such is protection of interests. there at time of enactment that the ordi- opinion room for a fair difference objective. If it promote nance would its necessity of a to the and reasonableness fairly is deci- at least debatable that the legislative subject a enactment on rationally legitimate sion related was police pow- lies within the domain of interests, government the decision must er, the courts will not hold void.57 upheld. be violate The ordinance will Though refer to the we did federal if it is process only due substantive test, our analysis rational basis was consis- arbitrary clearly and unreasonable.61 tent with it. clearly arbitrary precedent, our a Under years, For have past we consis regulation and is one that unreasonable tently to the rational basis adhered test. relationship purpose In rational its Barshop County v. Medina Under no District, ground in furthering legitimate Water Conservation we a state interest. Garcia, (Tex. 1996). Comp. Tex. 55. Workers’ Comm’n v. 58. 925 S.W.2d 631-633 1995) (citations (Tex. 893 S.W.2d omitted) (internal omitted); quotation marks (Tex.2007) (per 59. S.W.3d cu- Trinity see also River URS Auth. v. Consul riam). tants, Inc., (Tex. 889 S.W.2d 263 & n.5 1994). 60. Richards, State Tex. (Tex.1998) (em- S.W.2d 938-939 597, 599-600, (1957) (on S.W.2d 602-603 cer- (citations omitted). phasis original) questions tified appeals). court of civil Id. at diction, opts scholarly The instead to concoct an or a treatise article to entirely from the differing new standard support “oppressive” cite its test.64 in our terminology precedents. used To The reason is it is no obvious standard process, violating avoid substantive due a Oppression very all. is much in eye “clearly arbitrary be statute must not and case, the beholder. this the Court unreasonable”, sufficiently must be “ra- amount, cost, takes into account the and reasonable”, must [] tional and “strike a apparent required usefulness train- pur- legislative fair balance” between the ing, a lost income-earning op- threader’s rights, pose “justi- and must be individual portunity, danger and the health fied”, “oppressive” and must be or “in I safety. suppose and the Court would right”.62 of common Put all contravention agree that it should into also take account pours these words in a blender out severity number incidents а must not correct standard: statute be harm poor training due the benefit unreasonably that it “so burdensome be- public. process threaders This oppressive”. comes Reasonable burden- is what generally referred as legislat- okay. I someness is And think the Court ing. It should done. It should not be really unduly oppressive, means as distin- done judges. oppressiveness from the guished general. government analysis The Court’s answer is that rational if laughable consequences would be if, basis standard no better because as in not so cannot distill case, were serious.63 One present could rationally State single common test from elements of the require training, some the State could re- standards; “fair rational basis balance” quire an training.65 unlimited amount of Instead, must one choose between them. argument is nonsense. That some strict, the Court breeds deferential stan- training is rational does not mean that loose, one, with a dard non-deferential bright more is. There are no lines for resulting misbegot is ... loose and setting permissible training requirement *61 non-deferential. test. under either The difference is that objec- rational basis standard invokes process
While substantive due has been measure, subject many tive reason as its “op- of much while the study cases and Lochner, pressive” is nothing since cannot find test more than .Court case, juris- appeal Texas a case from an American a judge’s predilections. to (1909); 62. Ante at Ry. 87. Hous. accord & Tex. Cent. v.Co Dall., City (Tex.1905) 84 S.W. 653 of (noting justification, that without an "inva recently As we observed 63. in a different set- rights guise ] sion of under the of [ [the State’s ting, determining “the test for whether some- police] power” properly would be character thing necessarily oppressive vary is will from “unreasonable, next, arbitrary, ized as oppres [or] one to context thus term has sive”). The meanings, Court instead focused multiple depending its Lo- on the circum- sights chner-ian on the "just existence of a Rupe, v. stances.” Ritchie 443 S.W.3d (Tex.2014). protection relation of the 867 within legislative scope power,” of finding none, legislature concluded had over Three 64. Lochner-era cases reference the im Adams, stepped its constitutional bounds. "arbitrary propriety oppressive” legisla of or 662; McLean, 244 U.S. 37 at S.Ct. tion, 211 phrase uses the not one as a formal 206; U.S. 29 S.Ct. Hous. & Tex. process. for due test substantive Adams v. cf. Co, Ry. 84 Cent. S.W. at Tanner, 590, 595-596, 653. 244 37 S.Ct. (1917); Arkansas, L.Ed. 61 1336 McLean 211 U.S. 29 S.Ct. 53 539. 206. L.Ed. 315 65.Ante at 88. 136 strong in Texas.68 This is required those of the Court’s new subjectiveness response the fact framework regulatory is its evidence that Texas’ clear from
test only is state that has basis; not the many that Texas it is a rational common threading regulated should concluded Court’s'response what”. is “so states. The practice cosmetology of or part as judgment multiple state The reasoned Eight explicitly states other esthetics. be- legislatures is irrelevant to the Court Delaware, way: in this regulate threading training requirements cause whether Illinois, Louisiana, Hawaii, Iowa, Mississip- oppressive depends are excessive and Oklahoma, Virginia.66 pi, and West Two judges what think. The Court’s cosmetology encompass define others “oppressive” pure judicial policy. test hair any type superfluous removal.67 judicial long policy As made each cosme- require aspiring states These process, name of substantive due tologists complete and estheticians argues, legislating. it is judging, of coursework in numbers similar to Court hours (listing cosmetology superflu- § includes "removal of 24 Del. Admin. Code 5100-14.7 means”). by nonpermanent "threading” example "hair ous hair as an removal” providing removal shall be "[h]air Texas, require Illinois Like and Louisiana cosmetologist li- performed or licensed applicants cosmetology com- for a license to only”); Haw. censed aesthetician Rev. Stat. 1,500 plete (“ hours coursework. III. any person § 439-1 ‘Esthetician’ means 3-2(l)(c); Stat. who, tit. nonmedically prescribed Comp. / or hands Admin. Code La. And, Texas, appli- § they require like apparatus or devices mechanical electrical cants for a more limited license esthetician’s ... engages compensation [r]emov- ... complete 750 hours of coursework. ing body any superfluous hair about the 3A-2(c); Stat. (cos- / Comp. Stat. person;”); 3-1/ Comp. III. La. Admin. Code III. Delaware, Mississippi, § tit. 46 "removing metology superfluous includes require applicants for a cosmetolo- any Oklahoma body person hair the use of 1,500 gy complete hours of course- license threading, depilatories, waxing, or tweez- 5107; (esthetics § work. ers”); 3A-l(a)(3) tit. 24 Miss. id. includes "re- / Ann. Del. Code 73-7-13; § moving superfluous body hair from the Code Ann. Admin. Okla. Code § (" require appli- 157.1(5)(c) 175:10-3-34. These states § person”); ‘Cosme- Iowa Code complete cants an esthetics license to [rjemoving superfluous tology’ ... hair means hours of coursework. tit. 24 body person from the face or of a with the use Del. Code Ann. 5135; 73-7-18; § wax, § Miss. Code Ann. depilatories, sugars, threading, Okla. (esthetics § 157.1(12)(c) Hawaii 175:10-3-39. tweezing”); § id. in- Admin. Code 1,800 Virginia hair”); require West hours of course- "[rjemoving superfluous' cludes La. cosmetology 37:563(6) (esthetics work for and 600 hours for esth- § includes Ann. Rev. Stat. *62 439-12(b), (d); § etics. Haw. W. by preparations, removal "hair cosmetic Stat. Rev. Va. 3-1-5.1, §§ means”); Iowa and South threading, 3-1-9.1. waxing, similar or other Code R. 2,100 require 73-7-2(b)(iv) Dakota hours of coursework for (cosmetology § Miss. Code Ann. cosmetology a license 600 hours for an and “[a]rching eyebrows, includes to include 157.10(1); § esthetics license. tweezing, waxing, threading other Iowa Code 645.61.14, 7—2(d)(ii) Code r. S.D. epilation”); § methods of id. Iowa Admin. Admin. R. 73— 20:42:06:09, Pennsylvania (esthetics same); 20:42:06:09.02. re- includes the Okla. Admin. 1,250 quires 175:10-9-55(a) hours of coursework for a cos- ("Only § licensed Fa- Code metology cialist/Estheticians, license and 300 hours for an esthet- Cosmetologists or Barbers license, 510(a)(3), §§ ics 63 PA. Cons. Stat. may perform threading.”); § W. Va. Code 30- 511(b)(1). (esthetics 27-3(a)(4) aspiring Some states cosme- allow waxing, includes "[t]he tologists ap- complete an and estheticians to tweezing threading of hair on another prenticeship in lieu of or in combination with body”). person's See, e.g., classroom work. Ann. tit. Code Del. 5107(a)(3)(b) (c); § § (cosmetology § 67. 63 PA. Cons. in- 439- — Stat. Haw. Rev. Stat. 12(b), (d); 510(a), hair”); 510.3, superfluous §§ cludes "the removal of 63 PA. Cons. Stat. 516; 36-15-2(4) (the practice § S.D. Codified Laws S.D. Admin. 20:42:07:06-07. R, cannot, by simply invoking But the Court a whether Ashish Patel can pluck unwanted doctrine, the true hair poli- constitutional with a strand It mask thread.”71 is about ruling. a cy-making arrogation power character its One dramatic analysis regulation could take the Court’s the costs Court. Economic is invalid regulating eyebrow benefits of thread- majority whenever this Court feels it legislative ers and offer it evidence at a is oppressive. hearing, only there would also be evidence stylists Hair argu- could make the same relating to the needs why ment the Threaders do: should cosmetology industry generally, evidence required be to have instruction and exami- that the Court does not have and cannot treatment, nation in facial manicuring,
weigh. process The substantive due doc- massage, and the removal unwanted empowers Judiciary trine check reg- ham? Whether to create various licensing clearly arbitrary depriva- ulation that is a schemes, classification which practices liberty tion of economic violation due each, to include within been questions have (cid:127) course of basis law. rational test cosmetology regulation central since making this is not determination a dis- 1971. It kind of line-drawing that judicial responsibility legal claimer but a Legislature Department, and the practical recognition that “[t]he wis- courts, equipped impor- do. More or expediency Legis- dom is the law tantly, the Constitution gives this line- prerogative, lature’s not ours.”69 drawing power policymaking —this —to Executive, Legislature and the not to the Ill Judiciary. gone That the has no where one gone proudly before is declared applies issue same to other occupa- concurring opinion. Justice Willett’s regulation. tional There is an ongoing de- Gone are the constraints of the rational whether, regarding bate school law should standard, basis a standard dismissed as a year, have a third whether students should stamp” “judicial shrug”. “rubber sit earlier, be allowed the bar exam rhetorical torfent Justice Willett’s a lawyer and whether be should allowed to against regulation economic carries along obtain a special, limited-practice license its judges ultimate demand: Texas must Further, with less instruction. students investigation conduct an “asking” what the pursuing particular intent on area of to”, “government actually up weighing [is] law, practice for example question —tax — policymakers “what really had mind at why they required should be to take other time,” “scrutinizing]” “actual asser- courses, those, including proce- like civil tions All with actual evidence.”70 this dure, thought part of a fundamental Drang Sturm und day. announces new first-year curriculum. Medical education sure, “asking” And to be all this and “scru- similarly Why questioned. stu- should tinizing]” judicial is not activism. It is confining practice dents intent on merely judicial un-passivism. *63 particular specialities required areas or be to take unrelated courses? The answer is agree
I with Justice about Willett one to subjects particu- often that unrelated thing: case “[t]his concerns far more than Garcia, original). Comp. (emphasis 69.Tex. Workers' Comm’n v. Ante at 112 504, (Tex. 1995) (quoting 893 S.W.2d 520 Davis, (Tex. Smith v. 426 S.W.2d 71. Ante at 93. 1968)). The Lochner precedent. today as see part are nevertheless practice of lar field by monster, unleashed important rediscovered information background of the from the Judicia Court, stray this ra- far But even when will discipline. to the process .to due lacking, authority substantive sphere is ry’s proper tionale —and medical ed- merely because violated realm is not of the economic far afield places for student. each tailor-made is not ucation Judicial sympathetic. Court is cosmetology is whether inquiry Our authority over the State’s usurpation unconstitutional, not licensing scheme for eco protection may provide policies by the lines chosen think the whether we concurrence on which the liberties nomic as a matter well-placed Legislature gives rise eloquent, but also waxes policy. as Roe v. Wade.75 such decisions Justioe in justified judicial Lochner while for “nar And the Court applauds Willett regulation in the of economic validation funda between rowing] the difference” protect process due substantive name of (to his varsity team use rights mental —a implied grounded interest liberty only rights not includes metaphor) - contract, liberty right constitutional Amendment, but by the First protected an economic primarily, even solely, not not liberty interests discov privacy-based also rights constitutional have concept. Other clause it process in the due solely ered in our constitut implication found been asserted interests economic self—and that the argue ions.72 Scholars concurring opin here. Justice Willett’s by the United States Su implied privacy a Lo sails sets the Court’s ion fills in the Constitution federal preme Court chner-ian course. personal protecting the basis provides regulation.73 social liberty from IV power grab will be limited Court’s by our apply the test established I would interests”,74 of economic “regulation regulation is unconstitutional precedent: against in future cases but will wielded to a relationship a rational only if it lacks maybe legislation, all manner of Court, government interest.76 The legitimate by others who of this members Constitutionalism, Rights development gins Fundamental a recent discussion 72. For (2003) (arguing Geo. L.J. process and the fundamen- due of substantive rights analysis re- fundamental "Lochnerian protect, rights been held to see tal it has in modern funda- form” turned mutated Origins Hawley, The Intellectual Joshua D. mental-rights striking as decisions down laws Process, (Modem) Due 93 Tex. Substantive L. process due of "unenumerated violative (2014) 275, 280, (discussing the 328-334 Rev. Mayer, rights”); David N. Substantive Due police juris- powers the Lochner-era demise of Rise and Fall Process Rediscovered: replacement prudence with modern and its Contract, Liberty 60 Mercer L. Rev. argu- fundamental-rights jurisprudence, and (2008) liberty (discussing of con- 640-642 ing because the Su- this shift occurred groundwork were used as tract cases that "personal moral preme Court came to find Supreme protections of a Court’s later "self-development” choice” and —such "right privacy”). protected "right privacy” in Roe 113, 153, Wade, S.Ct. 410 U.S. Ante at 86. "compel- be more L.Ed.2d 147 —to private property ling” liberty types of than protections aim of the Lochner S.Ct. 35 L.Ed.2d that were the 410 U.S. era). Bernstein, City Park See, San Antonio v. TPLP 76. See e.g., Lochner Era David E. Office (Tex.2007) (per Revisionism, Props., 218 S.W.3d 64-66 Lochner and the Ori- Revised:
139 evidence, in legitimate the State’s in parties’ purpose its State’s protecting interest scheme, regulatory public and the effects that health safety.79 The Threaders regulation argue only to be But regulation are all considered.77 that the applied as judges eyebrow that to precedent our makes clear are threading specifically, the — -weigh training required not to the evidence to determine testing for licen- purpose approach whether the State’s sure —is so deprive as to excessive them of liberty are whether will they choosing reasonable or be in an occupation. successful; of judges the role is to dispute instead The State does that as many whether, light in required decide the evidence as 320 of the 750 hours are not enacting body threaders,80 presented, eyebrow the “could have to useful but it ar- ... that rationally gues decided the measure requirements that the are not clearly might objective.”78 arbitrary, achieve the the Unlike to must be violate sub- test, “oppressive” Court’s this is inquiry due process stantive under the correct objective, looking gov- not to whether the test. subjectively body ernmental believed the The health risks of commercial hair re- purpose accomplished, to would Patel, moval cannot be minimized. Dr. the governmental body a reasonable
whether expert offered the in Threaders the in light could havе so believed evi- the court, trial testified that avulsive hair re- cor- Judiciary It is not to dence. opens through moval a portal which bacte- in judgment by rect a mere error body through ria can enter the the skin. branches. policymaking reason, For explained, this she she trains that, in dispute The Threaders do spa threaders her medical use general, long-standing regulation Texas’ of antiseptic eyebrow on the area before be- cosmetology rationally is related ginning threading process apply and to curiam); Mayhew Sunnyvale, Although v. high, Town 964 plaintiff this burden is 922, (Tex. 1998); Barshop challenging S.W.2d 938-939 v. a law on its face nevertheless has Cnty. Underground opportunity put Medina Water Conservation evidence that the
Dist.,
618,
(Tex.1996);
challenged
possi-
925
law
S.W.2d
631-633
is unconstitutional in all
Richards,
166,
applications.
ble
State v.
157 Tex.
S.W.2d
301
597,
602-603
Props.,
78. TPLP
Park
The sets out the facts, byzan- and describes somewhat the curriculum are hours unrelated regulations apply tine web of that to Cos- safety engendered by' health and issues metologists, eyebrow a class that includes eyebrow' threading". In the Threaders’ (“Thread- petitioners threaders like the view, require the licensure courses too ers”). cosmetology legally practice To in' much time and much feature too irrelevant Texas, required. a license is Tex. OCC. material, by mandating them for eye- 1602.251(a), §§ general op- .257. A Code of threading, the Texas brow State violates training requires erator license a minimum guarantee of Constitution 1,500 hours, spe- whereas an esthetician that State “[n]o citizen this shall be cialty license requires minimum 750 deprived of ... ... liberty except by the 1602.254, .257; §§ hours.2 Id. see also course of due the law of the land.” Tex. 83.20(a), (b). § Individu- Tex. Admin. Code Const, I, § 19. art. engaged als in eyebrow business of threading required are to obtain at least The Court propounds novel test in' specialty esthetician license. See Tex resolving this core The dispute. second 1602.002(a)(9), §§ .257(a); see Code Occ. prong of this test that an holds" as-applied 83.10(11). § also Tex. Code Admin. challenge regulation an economic stat- The record that of the hours shows ute under section 19’s substantive-due- license, for an required esthetician requirement course-of-law will fail to over- hours are devoted sanitation. Sanita- presumption come the that the statute and hygiene tion issues also intermit- constitutional, challenging party unless the tently train- during addressed. elsewhere “actual, demonstrates that the statute’s ing, albeit the context instruction real-world effect as applied the chal- subjects. other fact that health party lenging arguably could not be ration- safety comprises part instruction at least to, ally related or is so burdensome as required of the is no instruction small mat- of, oppressive light governmental ter, given expert that Threaders’ own Op. Relying interest.” at 87. on this ele- improper observed that threading proce- test, ment of the Court estimates that can spread high- dures contribute approximately percent of the minimum ly contagious infections, viral bacterial and required training “arguably” hours are not warts, including flat lesions skin-colored to the performed by relevant actual work known as contagiosum, pink mulluscum eyebrow threaders. 89-90. ringworm, While eye, impetigo, staphylococcus aureus, similarly this unpleasant and other “determinative” the constitu- maladies. says tional question, the Court that “the percentage along must also be considered dispute
The central
concerns the train-
factors,
quantitative
with other
as the
such
requirements,
ing
specifically the amount
aspect of the
represented by
hours
they necessarily require.
of time
percentage
Threaders
as
and the
many
contend that
7Í0 of
costs associated
(cid:127)
training
the 750
hours
an esthetician
them.” Id.
license,
1,500
operator
up
2. For the
to 500 hours
ward
hours.
Tex. Occ. Code
1602.254(b)(3)(B).
may
§
vocational school
be credited to-
“Differen-
this stan- with the
when
admits:
doubts
significant
I have
cosmetology prac-
practice.3
tiating
types
As
between
is workable
dard
concedes,
dividing line is
prerogative
Legislature
“[t]he
tices is the
Court itself
required
Leg-
the number
bright
regulatory agencies to which the
between
yield
hours
would
delegates authority,” and
properly
but irrelevant
islature
constitutionally acceptable,
harsh,
re-
*67
but
with
statement that “it is
likewise
the
that would
number
and the
quirement
second-guess
for courts to
their decisions
But
this concession
not.”
Id. at
for
of
necessity
as
the
the
to
extent
enterprise
folly of the
prove
to
seems
training
required
for differ-
should be
Lacking standard that
place.
in the first
providers.”
of commercial service
types
ent
how can
consistently,
implemented
can be
view,
of
plain
In
truth
my
Id. at 89.
to
determina-
expected
make
a court be
contrary ap-
suggests a
these statements
(which,
in future cases
tions of this nature
proach.
add,
surely
in
follow the
I hasten to
will
case involves first
principles,
This
in
recognize
I
opinion)?
of
wake
this
repeating. By
bear
de-
precepts
timeless
law, bright-line tests are
many
areas
sign,
system government
on
our
rests
nor
simply
appropriate
attainable.4
separation of
checks and balances and
Court,
informa-
only
here
with
But
lay
powers.
genius
the Founders
record
gleaned
the limited
be-
tion
prescience.
Frankly
in their
acknowl-
us,
fraught
into
area—
marching
fore
is
frailty,
designed
sys-
edging
human
process
only with
substantive due
—armed
government
apportions power
tem of
imprecise standard.
branches,
among
allowing
three
agrees
with the Threaders’
proper balance of interests
ambitions.
regulation
characterization
as arbi-
for
equipoise
persist,
this
to
how-
order
alas,
trary,
adjective
that same
could
ever,
government’s separate
denizens of
applied
necessarily
the line-drawing
be
to
of then-
properly
branches must
conceive
in future
Is
involved here and
cases.
judiciary,
For
as
relative roles.
require
threading?
hours too much
branches,
recognizing
the other
this means
perspective, perhaps.
From
Threaders’
authority.
the limits on
own
This is no
its
injured
vantage
But from the
of someone
matter,
easy
given that human
tilts
nature
by
procedures, perhaps
these
not. Some
arrogation
power;
as Justice
techniques reportedly rely on
threading
noted,
once
this
waggishly
Antonin Scalia
string
placing one end
in the thread-
why
enduring trait
is
Lord Acton never
mouth,
er’s
which would seem invite a
“
”
‘[pjower
purify.’
uttered
tends
(superficial
host of
folli-
bacterial infections
Casey,
Planned Parenthood
Pa. v.
Se.
culitis,
instance).
skin
Different
sensi-
505 U.S.
S.Ct.
placed
tivities
risks
could
different
(1992) (Scalia, J., concurring
L.Ed.2d 674
by
point
these
crucial
procedures. The
is
part
dissenting
in
part).
considerations,
that these
and their rela-
training
I a
programs,
quintessen-
Legislature,
tion
Were
member of the
Thus, I
legislative inquiries.
tial
agree
question
is little
I
look
there
that would
See,
Robinette,
e.g.,
something
3. Whether a test
is "workable”
Ohio v.
See,
(1996) (noting
e.g.,
this Court has considered
117 S.Ct.
threaders, I agree accompany- with the record, this
ing dissent’s sense that “on regulation obviously
threading too (Hecht, C.J., Op.
much.”5 at 131 dissent- am not a I
ing). legislator; But I am a duty-bound I
judge. Accordingly, am regardless my policy
apply pref- the law line-drawing prob-
erences. The difficult
lems this ease are involved best resolved Legislature, dint its
experience competence is better *68 questions
equipped to decide these than
this is not question tribunal. The whether regulations prudent,
these whether
they violate the Texas Constitution’s due- provision.
course-of-law That is a differ- entirely.
ent I disagree matter Because
with the this query, Court fundamental
I respectfully dissent. ZORRILLA, Petitioner,
Mirta II,
AYPCO CONSTRUCTION LLC and Munoz, Respondents Luis
Jose
No. 14-0067
Supreme Court of Texas.
Argued March
OPINION DELIVERED: June course, Assuming, investigations record that the before have no and held conducted no case, complete. this accompanying hearings. As the As in we know what the observes, us, wisely "nothing párties nothing Op. dissent of what have told more." C.J., (Hecht, prompted regulation dissenting). is before us. We notes 220. Letter David Crockett his chil- text, (Jan. 1836), 96 accompanying Consti- dren Texas H.W. Brands, Lone Star exactly tution does mirror Consti- 332 not U.S. Nation trary, way,” Hous. & oppressive test under of a alternative adoption new Dall., Ry. City course v. Tex. Cent. Co. Constitution’s “due the Texas (Tex.1905); law any provision invalidates S.W. of law” it unreasonably burdensome is “so (cid:127) “sufficiently it rational and rea- is to the un- in relation oppressive becomes sonable,” Comp. Tex. Workers’ Ante governmental interest.” derlying Garcia, v. 893 S.W.2d Comm’n n Nevertheless, Tex- I conclude that the (Tex.1995); petitioners requiring as statute —who (cid:127) and is a it has foundation reason “no using superfluous merely remove hair arbitrary or exercise mere irrational obtain an estheti- techniques tweezing —to no relation to power having substantial arbitrary unreason- cian’s license health, morals, public public therefore, it able, oppressive, because public safety welfare relationship legitimate to a has no rational sense,” Mayhew in its v. Town proper government interest. Sunnyvale, S.W.2d provides Constitution (Tex.1998) City (quoting Nectow deprived State shall be citizen óf this “[n]o 187-88, Cambridge, 277 4 life, liberty, privileges or im- property, (1928)); 447, L.Ed. 842 S.Ct. disfranchised, munities,' or in manner (cid:127) accomplish “designed law of except the due course government’s po- objective within the §I, our Const, art. 19. Under land.” Tex. power lice rational relation- [no] “contains both precedent, guarantee this