Supreme Court

Federal Judge Upholds Ban on Unlicensed African Hair-Braiding, Says Courts Must Show 'Great Deference' to Government Regulations

"This case illustrates the great deference that federal courts must show to government regulations," claims judge.

|

In the state of Missouri it is illegal to offer African-style hair-braiding services to paying customers without first obtaining a cosmetology license. To obtain that license, would-be African-style hair-braiders must spend thousands of dollars and complete over 1,500 hours of state-sanctioned education. However, none of the state's licensed cosmetology schools actually teach anything about African-style hair-braiding. In other words, the licensing requirement is an arbitrary and unnecessary obstacle that prevents would-be African-style hair-braiders from earning a living in a totally harmless occupation. By contrast, to become a licensed emergency medical technician in Missouri, a job that legitimately impacts public health and safety, it requires just 100 hours of education.

Unfortunately, none of that mattered this week when Judge John M. Bodenhausen of the U.S. District Court for the Eastern District of Missouri issued an opinion upholding Missouri's ban on unlicensed African-style hair-braiding. "This case," Judge Bodenhausen declared, "illustrates the great deference that federal courts must show to government regulations under the rational basis standard."

The rational-basis standard, also known as the rational-basis test, has its origins in the great vogue for judicial deference that swept the courts during the Progressive and New Deal periods. In the 1933 case of Nebbia v. New York, for example, the Supreme Court upheld the conviction of a New York grocer named Leo Nebbia. His crime? Selling milk during the Great Depression for less money than the minimum price set by the state's Milk Control Board. "A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare," declared the majority opinion of Justice Owen Roberts. Never mind whether or not the regulation in question actually protects or serves the health, welfare, or safety of the public. What matters is that the government says that it does. So long as "the laws passed are seen to have a reasonable relation to a proper legislative purpose," Roberts said, the courts should defer to that regulation and assume that "the requirements of due process are satisfied." Put differently, if lawmakers and government lawywers claim to have a "rational basis" for the regulation, the courts are supposed to whip out the rubber stamp.

The problem with this approach is that it violates the original meaning of the Constitution. Specifically, it violates the original meaning of the 14th Amendment, which was enacted to prevent state officials from violating economic liberty in precisely this sort of fashion. As Republican Rep. John Bingham of Ohio, the primary author of Section One of the 14th Amendment, told the House of Representatives, the amendment was enacted in part to protect "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of your self, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil." Judicial deference turns that constitutional safeguard on its head.

The time is long overdue for the federal courts to heed Bingham's words and stop deferring to nonsensical economic regulations in the name of the misguided rational-basis test.

NEXT: Who Will Get to See the Footage of Keith Scott's Killing by Police?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Looks like the fuckin’ hired help has forgotten their place.

    1. No, I would say the judges know their place quite well in the New American Total State.

  2. “This case,” Judge Bodenhausen declared, “illustrates the great deference that federal courts must show to government regulations under the rational basis standard.”

    How? How does that illustrate it at all? Check and balances for the win.

    1. Judge John M. Bodenhausen doesn’t want to do anything other than collect a paycheck, get called “Your Honor” and maybe slide upward onto the Appellate bench…. Separation of Powers is, like, work, man!

      1. What do you call a lawyer who finished in the bottom of his class?

        “Your honor.”

        1. While that does describe some judges I know, I’m more annoyed at the reuse of an old joke.

          1. Yeah, so sue me! [Looks up “Hutz” in speed dial]

    2. Check and balances for the win.

      How quaint.

    3. “How? How does that illustrate it at all?”

      Because Judge Bodenhausen, was appointed in 2014. That’s how.

  3. That which is more difficult to do is racist.

  4. Becoming a cop in Missouri only takes 1,000 hours.

    1. And 100 of those hours are just learning racial slurs.

      1. The remaining 900 involve getting your union rep’s number onto your phone and learning the magic words that will allow you to kill anyone you want.

        1. Requires 2 or more officers, simultaneously saying contradicting commands.

          1. That should be *screaming* contradicting commands.

  5. So long as “the laws passed are seen to have a reasonable relation to a proper legislative purpose,” Roberts said, the courts should defer to that regulation and assume that “the requirements of due process are satisfied.” Put differently, if lawmakers and government lawywers claim to have a “rational basis” for the regulation, the courts are supposed to whip out the rubber stamp.

    Please stop nominating any SCOTUS nominee with the surname, “Roberts”. It doesn’t seem to end well.

    1. Absolutely. I would also accept the simplified, “Please stop”, as more than adequate.

  6. You have the right to live (unless a cop feels unsafe), liberty (unless your profession is arbitrarily regulated by the government) and the pursuit of happiness (unless it’s drugs or a million other aribrarily illegal things that make you happy).

    1. Apparently you didn’t get NIck’s latest libertarian moment memo. Back to the reeducation camp for you.

  7. has its origins in the great vogue for judicial deference that swept the courts during the Progressive and New Deal periods.

    Tells you all you need to know.

  8. Then why have a court in the first place?

    1. Then why have a court in the first place?

      To protect the government from the people, of course.

  9. This case illustrates the great deference that federal courts must show to government regulations

    Does anyone remember when the courts were supposed to show great deference to the documents that created the gov’t at it’s various levels? Pepperidge Farm remembers…

  10. “A state is free to adopt whatever economic policy may reasonably be deemed to promote the public welfare,”

    […]

    “the laws passed are seen to have a reasonable relation to a proper legislative purpose,” Roberts said, the courts should defer to that regulation and assume that “the requirements of due process are satisfied.”

    Sounds a lot like the Kelo opinion, does it not?

  11. “This case illustrates the great deference that federal courts must show to government regulations,” claims judge.

    “I exist as a rubberstamp. That is my highest purpose.”

    Let’s rename the DoJ, the Department of Redundancy Department.

  12. The licensing requirement is to prevent cultural appropriation, which is a serious danger to the public.

  13. Is there any question that the end is nigh?

    1. Well, there are still people in the US that believe we don’t have enough government yet.

      1. My point exactly. It’s this bad and people want more. Can you imagine what end-times will look like?

        Maybe this is good? Maybe when it finally snaps it will snap hard.

        1. That’s why I think it’s not as close as you do, possibly. I agree with you that things are bad though we might disagree slightly over the level of badness. But we are greatly outnumbered by the people who believe it’s bad because it’s not enough rather than because it’s too much.

          1. Sparky nails it. To the wall. Like a sloe comfortable screw.

          2. But we are greatly outnumbered by the people who believe it’s bad because it’s not enough rather than because it’s too much.

            I can’t help but think that that ratio can/will change rapidly at some point as the egregiousness of our overlords increases. I think it’ll be exponential rather than linear, thus a much faster onset when it hits the tipping point.

            The good news is…we own all the guns.

            For now.

            1. I’d share your optimism, but 5000 years of civilization kinda go the other direction.

              1. Are you trying to say we’re on the wrong side of history?

                1. Let’s put it this way…

                  Revolutionaries only revolt so that they can be in charge. Revolution is nothing more than a new group taking control.

                2. Are you trying to say we’re on the wrong side of history?

                  If “wrong” == “anomalous”, then yes, that’s a fair statement.

              2. I disagree.

                The world has gotten freer in the last 5000 years (on the whole). The problem is that we tend to regress, for various reasons, after each leap forward. This is such a regression and it will require a reset, which will hopefully be the start of the next leap forward.

                1. You might be right and I might be overly pessimistic. Time will tell. I’d also agree that human intelligence is steadily increasing and that may help somewhat. But, there will always be those who are lesser and those who earnestly just want to be told what to do.

          3. If you would stop being productive and go on the dole, your attitude about government will absolutely change. If your livelihood depends on drawing a government check, you will always think it is never enough.

            The solution is to end the dole. Even Greece isn’t that far along yet.

      1. “This has all happened before. It will all happen again!”

  14. We can be as certain as we can be about anything 14th-Amendment-related that the original public meaning of the 14th Amendment was that there was a right to “make and enforce contracts.” This was supposedly one of the privileges and immunities of U.S. citizenship, protected by the Amendment.

    The US Supreme Court basically dropped the Privileges and Immunities Clause, but for a time they used the Due Process clause to accomplish the same objective: You have the right to make contracts, including contracts for labor and contracts between customer and service provider, except to the extent the state regulated that right for the sake of the public health, safety and morals – and they state couldn’t just make up what those things meant, such rationales would be subject to judicial review.

    So if you operate a business (except perhaps a “business affected by the public interest” like a common carrier) then you can sell goods and services to willing customers without BS regulations which exceed what the public health, safety and morals require.

    It’s like the icemen in the New State Ice Company case – they won because the regulation was so arbitrary and anticompetitive.

    But Brandeis issued his “historic,” “courageous” dissent about the state’s “right” to “experiment” on the liberties of the people, and soon this dissent became orthodoxy.

    So enjoy the experimentation, test-subjects…I mean citizens!

  15. The Permission Society: How the Ruling Class Turns Our Freedoms into Privileges and What We Can Do About It by Tim Sandefur

    Throughout history, kings and emperors have promised “freedoms” to their people. Yet these freedoms were really only permissions handed down from on high. The American Revolution inaugurated a new vision: people have basic rights to life, liberty and the pursuit of happiness, and government must ask permission from them. Sadly, today’s increasingly bureaucratic society is beginning to turn back the clock and to transform America into a nation where our freedoms–the right to speak freely, to earn a living, to own a gun, to use private property, even the right to take medicine to save one’s own life–are again treated as privileges the government may grant or withhold at will.

    1. Which is full proof that the form of government put forth at the beginning of the US is just an anomaly in the course of human history.

      1. Or that it has been powerless to prevent what government is doing to society.

    2. America into a nation where our freedoms–the right to speak freely, to earn a living, to own a gun, to use private property, even the right to take medicine to save one’s own life–are again treated as privileges the government may grant or withhold at will.

      To be fair, when low cost housing, free medical care, free abortions etc. are considered “rights”, it’s easy to get confused and start believing that things that have to be taken from others and given to you by a domestic army and things which you have in the absence of government are the same thing.

  16. To obtain that license, would-be African-style hair-braiders must spend thousands of dollars and complete over 1,500 hours of state-sanctioned education.

    But- per Gail Collins, in that state, you can just go buy a gun and stick it in your pocket!!!!! No license, no training, no nuthin.

    Oh, Missourah, you so crazy.

  17. the judges know their place quite well in the New American Total State.

    I gots me a phone, a pen, and a rubber stamp. That’s all all a President really needs.

    1. You strike me as more this type, Brooksie:

      “A pistol, a knife, and a clean hanky; things a guy can use!”

      -Ted Nugent

  18. the judges know their place quite well in the New American Total State.

    And that is to get on their knees and suck that cock. Maybe you Judgess should consider changing the color of your robs. Those dried up cum stains show up really well. I would’ve thought y’all would have been better at swallowing. But apparently you can’t even get that right.

    1. Robs… sorry Freudian slip. Robes.

  19. CNBC makes Democratic case for Donald Trump.


    Donald Trump Trump plans would increase debt 26 TIMES more than Clinton’s: Study

    1. The estimate for Trump is sharply higher than the analysis of Clinton’s plans, which are projected to increase the debt by $200 billion

      LOL are they off their rocker? Nobody believes that figure.

  20. Donald Trump Trump plans would increase debt 26 TIMES more than Clinton’s: Study

    STIMULUS!

    1. Paul Krugman is reconsidering voting for Clinton as we speak.

  21. Great deference to gov regulation? Tony is probably masturbating right now with giant gourd stuck up his ass.

    1. Well, it IS Thursday.

  22. “This case illustrates the great deference that federal courts must show to government regulations,” claims judge.

    Not today, man. Fuck you.

  23. Riven and minorities hardest hit.

  24. Missouri’s house and senate are overwhelmingly Republican (governor is Democrat) so where is the “small government with less regulation of business” mentality? Maybe if African-Americans didn’t vote 90%+ for Democrats there would be some incentive for the GOP to roll-back these kinds of regulations that harm minority entrepreneurs?

  25. But in no way do government regulations stifle job creation and wealth generation.

  26. So, raise your hand if you think this bullshit will prevent people from braiding hair as they see fit, license or no. And they’ll get paid for it too. They just won’t report it. A perfect example of how a black market is started. See what I did there?

  27. Judge Bodenhausen, you are there as a check on the executive branch. Not a facilitator.

    1. Judge Bodenhausen, delete your judgin’ account.

  28. Well, you ask some dimbulb who gets paid by the government and is employed for life, you shouldn’t be surprised that he isn’t much swayed by that stuff that’s written down long ago.
    See gov’t school teachers, for example.

  29. The short version:

    Rational basis = gov’t always wins.

    Intermediate scrutiny = could go either way.

    Strict scrutiny = gov’t always loses.

  30. The so-called “rational basis test’ actually has no rational basis in the Constitution.

    It is just another example of something that was dreamed up out of whole cloth by the court itself that it pretends is a untouchable concept.

    1. True, but that’s (ostensibly) the standard used today.

      Most of the law we have today has no rational basis in the Constitution. See, the Commerce and “Dormant” Clauses.

  31. “This case,” Judge Bodenhausen declared, “illustrates the great deference that federal courts must show to government regulations under the rational basis standard.”

    Institute for Justice…to the white phone, please…

    1. That reminds me, time for another donation to IJ.

  32. Judge: If Africans want to braid hair, they must first get permission from their masters.

  33. Federal Judge Upholds Ban on Unlicensed African Hair-Braiding, Says Courts Must Show ‘Great Deference’ to Government Regulations

    Fuck off, slaver.

    *mumbles something about woodchippers under breath*

  34. Ahhh, Missouri. We outlaw strippers, make it next to impossible for braiders and eyebrow threaders to operate… it’s almost as if they would prefer that low-skilled women just stay poor.

    1. it’s ok….you can have some of our strippers.

  35. “This case,” Judge Bodenhausen declared, “illustrates the great deference that federal courts must show to government regulations under the rational basis standard.”

    No. Just, No. A thousand times, NO!

    Courts must show great deference to liberty. Any denial of liberty must be presumed unjust and only upheld in the most particular circumstances.

  36. deference is bias.

  37. The licensing requirement is to prevent cultural appropriation, which is a serious danger to the public.
    clean master apk
    Clash royale apk

Please to post comments

Comments are closed.