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

Thursday, September 22, 2016 10:09
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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.

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