Courts

Is This the Most Libertarian Legal Opinion Ever Written?

The Texas Supreme Court strikes down a senseless regulation.

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In a resounding victory last month for economic liberty, the Texas Supreme Court struck down a state licensing law that required eyebrow threaders to complete 750 hours of costly and unnecessary cosmetology training in order to receive the state's permission to charge customers for the harmless act of removing unwanted eyebrow hairs with a loop of cotton thread.

Ashish Patel, Photo by Institute for Justice

"The requirement of 750 hours of training to become licensed is not just unreasonable or harsh," the Texas Supreme Court held in Patel v. Texas Department of Licensing and Regulation, it is "so burdensome as to be oppressive."

No kidding. As the Texas high court pointed out, "persons licensed to apply eyelash extensions—a specialty involving the use of chemicals and a high rate of adverse reactions—are required to undergo only 320 hours of training." Eyebrow threading, by contrast, is an entirely safe occupation that involves no chemicals and requires only that practitioners follow the most rudimentary of sanitary practices, such as the regular washing of hands. To force would-be eyebrow threaders to spend as much as $9,000 on 750 hours of pointless training in order to obtain a pointless license is practically the definition of arbitrary government. We're not talking unlicensed brain surgery here.

In addition to that welcome judgment by the court's majority, Texas Supreme Court Justice Don Willett filed a lengthy concurring opinion of his own, in which he launched a full-throated defense of economic liberty under both the Texas and U.S. Constitutions. It is easily one of the most libertarian legal decisions I've ever read. (I'm also happy to report that Justice Willett cites my book in it.) Here's an excerpt from Justice Willett's superb concurrence:

This case concerns the timeless struggle between personal freedom and government power. Do Texans live under a presumption of liberty or a presumption of restraint? The Texas Constitution confers power—but even more critically, it constrains power. What are the outer-boundary limits on government actions that trample Texans' constitutional right to earn an honest living for themselves and their families? Some observers liken judges to baseball umpires, calling legal balls and strikes, but when it comes to restrictive licensing laws, just how generous is the constitutional strike zone? Must courts rubber-stamp even the most nonsensical encroachments on occupational freedom? Are the most patently farcical and protectionist restrictions nigh unchallengeable, or are there, in fact, judicially enforceable limits?

This case raises constitutional eyebrows because it asks building-block questions about constitutional architecture—about how we as Texans govern ourselves and about the relationship of the citizen to the State. This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.

The Texas Supreme Court's opinion in Patel v. Texas Department of Licensing and Regulation is available here. Justice Willett's concurring opinion in Patel is available here.

Related: Top 10 Libertarian Supreme Court Decisions