Supreme Court

How the Supreme Court Is Aiding and Abetting Occupational Licensing Abuse

Williamson v. Lee Optical of Oklahoma, Inc. should be overruled.


Library of Congress

In 1955 the U.S. Supreme Court effectively told every federal judge in the country to uphold the vast majority of economic regulations that landed in their respective courtrooms.

"It is for the legislature, not the courts, to balance the advantages and disadvantages" of laws that regulate the economy, the Supreme Court declared in its opinion in Williamson v. Lee Optical of Oklahoma, Inc. "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." In other words, the Court said, tip the scales in favor of lawmakers when an economic regulation is challenged in court.

The result? Even the most preposterous, pointless, and even harmful regulation stands a good chance of prevailing in federal court.

Case in point: Yesterday the U.S. Court of Appeals for the 8th Circuit repeatedly cited Lee Optical in a decision affirming the constitutionality of Missouri's ludicrous requirement that African-style hair-braiders obtain a government license before they are legally permitted to charge customers for the harmless act of braiding hair. To get such a license, would-be hair braiders must spend tens of thousands of dollars in tuition on at least 1,500 hours of cosmetology school classes. None of those mandatory classes teach or test anything about African-style hair braiding.

In 2014, the hair braiders Ndioba Niang and Tameka Stigers, represented by the lawyers at the Institute for Justice, took the Missouri Board of Cosmetology to court. Niang and Stigers argued, correctly, that the state's absurd licensing scheme serves no legitimate health or safety purpose while at the same time preventing otherwise law-abiding citizens from earning a living in a perfectly safe occupation.

But none of that mattered to the 8th Circuit. "The State 'may enact a needless, wasteful requirement in many cases,' which may 'not be in every respect logically consistent with its aims,' but still be 'constitutional,'" the 8th Circuit ruled in Niang v. Carroll, quoting extensively from Lee Optical. "There may be advantages and disadvantages to a licensing requirement, '[b]ut it is for the legislature, not the courts, to balance' them." In the opinion of the 8th Circuit, the state's licensing requirements "do not violate the Fourteenth Amendment rights of the African-style hair braiders."

From the standpoint of constitutional originalism, that is pure bunk. The 14th Amendment, as originally understood by those who drafted and ratified it, does place substantive limits on state regulatory power and does recognize the right to earn a living as one of the privileges or immunities of U.S. citizenship that "no state…shall abridge." In the words of Republican Congressman John Bingham of Ohio, the principal author of Section One of the 14th Amendment, the Privileges or Immunities Clause protects "the constitutional liberty…to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil."

Missouri's licensing scheme for African-style hair braiders plainly violates this fundamental constitutional right and deserves to be invalidated for that reason. Unfortunately, thanks to the Supreme Court's deeply flawed ruling in Lee Optical, the 8th Circuit had a ready excuse for ignoring the 14th Amendment and rubber-stamping this nonsensical law.

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  1. They messed up; the suit should have been based on racism, only African Americans affected.

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  3. So the Libertarian position is that the Supreme Court should override state legislation?
    Even when the legislation has gone through the proper legal channels?
    Silly me, I thought we preferred state over federal. And local over state.
    Those who dislike a state law can move, right? That is why I live in a state without an income tax. I can avoid some of the other taxes by my purchase and lifestyle choices.
    The fact that a law is stupid, shortsighted, and violates individual freedom is not reason to cry for federal intervention. Some states have high taxes and lots of government ‘help’ or ‘interference’, other states do not. So choose wisely.

    1. This was a thought I continually had in the back of my mind reading this article. Legislation, at least in theory, is a lot easier to undo than court precedent. And as you point out, anything done at the local or state level has a less far-reaching impact (for good or bad) than those done at the federal level. I think this regulation, like the vast majority of occupational licensing laws, is silly and counterproductive, almost certainly driven through cronyism to throttle competition by well-established firms that pushed this law through legislators using scaremongering. But politicians voted into office passed the legislation, and those legislators can undo it if pressured by voters. If they don’t, then it becomes the voters fault, and the right course of action for these hairstylists is to go to a less economically regulated state.

    2. Licensing regulations appears to be one of the things that several Reason writers are ok with the feds interfering on. It strikes me as strange too, but…

      1. Federalism is not an end in itself.

    3. The libertarian position is to favor freedom over regulation and control. Doesn’t matter who is doing it.

      More local control can be good. It can also be bad. Local control isn’t a libertarian principle, it’s something that is sometimes practically useful. State and local governments are often the worst when it comes to interfering with economic freedoms. Since the 14th amendment passed, the federal government has had a constitutional role in keeping states from violating people’s rights. I’m pretty OK with that arrangement as long as it’s the feds telling the states they can’t have certain laws and regulations and not forcing or encouraging certain laws or regulations.

      1. Yes. Is there any argument for federalism that doesn’t quite quickly get to an instrumental end; that is, one should support local over national power because it’s more likely to lead to our greater end (liberty, democracy, pluralism, whatever). Plenty of libertarians believe this, and plenty don’t or place little value on it. After all, lots of libertarians also hold up ‘separation of powers’ and ‘checks and balances,’ which are instrumental principles that clash with strict local-over-national federalism.

        And some libertarians are more comfortable with court-driven law than with legislated law.

    4. Once again, my poor attempt at snark is not needed. The genuine thing is here.

    5. The libertarian position is that the vast majority of laws and regulations in this country are un-Constitutional, and its the Court’s job to strike down un-Constitutional laws.

      1. Agreed. I don’t really see this as a federalism issue. It’s a straightforward violation of the 14th amendment. It is absolutely the role of the federal courts (not the president or federal legislature) to strike down unconstitutional state laws.

    6. except that the Constitution guarantees us all certain RIGHTS, and that NO government at any level can lawfuly infringe upon those rights. And the right to labour at a given trade in order to sustain one’s self economicially is one of those rights, along with the freedom to associate with whom we will.

      Further, these laws are almost exclsuvely “restraint of trade” laws, set up by those in power to protect certain limited factions of people who want to control access into certain trades, and use bogus icensing schema to effect this control.

  4. I am shocked, shocked that the Constitution failed to prevent this egregious overregulation.

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  6. As much as I disagree with the regulation, and I think that most occupational licensing is crap, this really is not a 14th amendment issue. The relevant part of the 14th amendment is this:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    You could interpret “privileges” to mean mean just about anything, so you could interpret “privileges” to include the “privilege” to not be regulated, but it’s pretty clear that they just meant life, liberty, and property. The 14th amendment is *not* the “whatever the supreme court considers a privilege” amendment. Otherwise, this opens the door for all kinds of other misuse of the the 14th amendment.

    The fact of the matter is, is that the constitution doesn’t regulate or address each and every problem. It really only covers the basics. States have the right to pass shitty laws, and the solution is not to “interpret” the constitution as preventing anything you disagree with, but to convince the legislature not to pass shitty laws.

    The libertarian position is against this law, but that doesn’t mean that it is a constitutional issue.

    1. Correct; the sad part is that ‘due process’ WAS followed. The restrictive laws were passed by the legislature in regular order.

      1. Generally the term “due process” applies to court proceedings, not legislative bodies. It refers to a defendant’s right to notice of the charges against him and an opportunity to be heard.

    2. Actually, as noted in the article, the right to earn a living IS one of those privileges…

    3. how about protecting the liberty of these women to ply a harmless trade without the regulative burden of the thousands of hours/dollers/delay in complying with the outrageous licensing requirements? How bout the freedom of those ladies to freely associate, in a commercial relationship, with whomever they please, including those who happen to want their hair braided african style? And are willing to pay for the skill/service rendered?

      The making and serving of coffee as a beverage in a commercial facility involves FAR more hazards and risks, and is far more techinical, than braiding hair. But how much “training” and “schooling” and “certificatioin” is mandated my law as a preconditioin for one’s performing this service in exchange for money? COnsider what it takes to obtain a government issued permission slip to become qualified to drive a car… a heavy complicated fully lethal device, the misuse of which leads to tens of thousands of deaths nationwide each year….. over 18, gt your brother or uncle to help you learn the basics, take a bogus written exam, typicaly on a cartoon computer screen, then get in a car with an “examiner” and drive the thing a mile or two without killing anyone or breaking any laws, you’re now certified to take that two tonne missile out in pubilc and….. go anywhere. How many peopl ehave been killed or seriously maimed by someone braiding their HAIR? Compare and contrast… this is insanity.

  7. Well, if we were to implement a rule of law that states may only pass regulations that are not “preposterous, pointless, and even harmful”, regulators would be out of business as would be noisome and officious “inspectors”. Can we possibly allow small business and startups to proceed without wading through a mountain of paperwork at every turn? The mere thought boggles the mind

  8. I hadn’t heard of Williamson v Lee Optical before today, and wow: no wonder chief justice Roberts labeled Obamacare a “tax” – had he not done that, this precedent would likely have brought the matter back again [assuming the court didn’t toss the ACA on the ash heap, and find another ruse to protect it]. The matter just might have come back with a writ of mandamus [because you can’t look at Williamson v Lee Optical without cracking open a states rights perspective]… and that usually puts an end to kabuki theater.

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  11. This article was surprising. Do the writers at Reason have any intellectual honesty?

    1. I agree that there is an argument that can be made based in the constitution.
    2. There is a larger and more compelling argument that this would not violate the constitution without also invalidating 90% of other laws. “You won’t let me dump chemicals on my own property? How else am I supposed to make a living creating homemade solar panels? Paying for disposal makes it unprofitable, and therefore the state is effectively saying I can’t make a living in that profession.”
    3. This is a bad law… and we should fight against bad laws. However, the method and process we use is very important. Laws are repealed MUCH more easily than a supreme court decision is overturned. When you encourage the courts to be activists, you will likely not like the results.
    4. I respect judges that rule according the the law while also publishing statements with their decision about how the law is bad and should be repealed. What we should do is give those judges/cases a wider audience so that voters can apply political pressure on state legislatures to affect change. Articles like this blaming the court system doesn’t help unify people to take any useful action.

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