Op-Ed: Texas Supreme Court protects economic liberty

Published by the Austin American-Statesman, July 12, 2015

By John Colyandro and Russell H. Withers

Although overshadowed by controversial decisions from the U.S. Supreme Court, the Texas Supreme Court recently issued an important decision of its own in Patel v. Texas Department of Licensing and Regulation. Patel not only solidifies the Texas Constitution as providing stronger protections for economic liberty than the U.S. Constitution, but it ends six years of litigation in the contentious area of occupational licensing regulation.

Justice Don Willett captured the broader issues at stake in his concurring opinion, which explained that the “Texas occupational licensure regime, predominantly impeding Texans of modest means, can seem a hodge-podge of disjointed, logic-defying irrationalities, where the burdens imposed seem almost farcical, forcing many lower-income Texans to face a choice: submit to illogical bureaucracy or operate an illegal business?”

Eyebrow threading is a simple facial hair removal process using only a thin cotton thread. The Texas Department of Licensing and Regulation began regulating threading as cosmetology in 2008. Despite the fact that threading has little in common with Western-style cosmetology — which typically involves chemicals, hot liquids or razors — the department began issuing $2,000 penalties to threaders in Texas and forcing them to close their businesses until they attend course work in private beauty schools costing between $9,000 and $20,000 — schools that do not even teach the practice of threading.

The department argued throughout litigation that eyebrow threading is a major threat to health and safety. The plaintiffs in the case argued, in contrast, that the regulations provide no public health and safety benefit, while at the same time placing enormous burdens on practitioners.

The Texas Supreme Court sided with the plaintiffs. To understand the importance of the court’s decision, legal challenges to economic regulations must be put in context. In due process challenges under the federal Constitution, courts apply what is called the “rational basis” test, which means that the government can come up with any justification it can think of for the regulation, and courts typically will side with the government with almost automatic deference.

Economic challenges under the Texas Constitution’s “due course of law” provision have often mirrored the federal standard, but not always. The Patel case presented the Texas Supreme Court with the perfect opportunity to clearly state that the Texas Constitution provides greater protection against arbitrary and oppressive regulations than its federal counterpart. That’s exactly what the court did.

The court’s majority opinion explained that statutes are presumed to be constitutional, but that presumption can be overcome in one of two ways. Challengers can show that “(1) the statute’s purpose could not arguably be rationally related to a legitimate governmental interest; or (2) when considered as a whole, the statute’s actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest.” Under prong (2), the court explained that the Texas Department of Licensing and Regulation’s 750 hours of training to become licensed is a requirement “not just unreasonable or harsh, but it is so oppressive that it violates Article I, Section 19 of the Texas Constitution.”

The majority opinion is a strong affirmation of economic liberty in Texas and provides a clear path to challenge arbitrary and oppressive regulations in the future. It is measured and reasonable. But Willett added an important element to the discussion of economic regulations in Texas with his concurring opinion, which explains why Texas chose to provide a higher level of protection than is afforded by federal courts under the rational basis test. He “would not have Texas judges condone government’s dreamed-up justifications (or dream up post hoc justifications themselves) for interfering with citizens’ constitutional guarantees.” Indeed, the justice believes that judges “should be neutral arbiters, not bend-over-backwards advocates for the government,” as is so often the case in rational basis review.

Under the court’s adopted standard, it looked at the claims, applied the facts, and determined that the department’s actions were unconstitutional.

Colyandro is executive director and Withers is general counsel of the Texas Conservative Coalition Research Institute.