Legal Commentary

New Institute for Justice Economic Liberties Case

By Ilya Somin

The Institute for Justice has recently filed a new case challenging an especially egregious infringement on economic liberties under the Constitution:

A civil liberties law firm has filed suit against the state of Texas on behalf of eight eyebrow-threading entrepreneurs, several of whom are based in San Antonio.

The Institute for Justice, Texas Chapter, is alleging the state government has violated the entrepreneurs? constitutional rights by requiring them to go through a licensing process that mandates 1,500 hours of instruction at an estimated cost of $20,000.....

Wesley Hottot, lead attorney for the Institute for Justice Texas Chapter, says Texas? proud heritage as a beacon for entrepreneurship is in danger ?when the state tries to regulate every new industry rather than trusting entrepreneurs and consumers.?

Hottot says eyebrow threading is an ancient technique for removing unwanted eyebrow hairs using tightly wound cotton thread. ?Threading is a booming industry in Texas because it is cheaper, faster and less painful than waxing,? he says.

But now the TDLR has threatened this small business-based industry by requiring practitioners to obtain what Hottot says are ?expensive and irrelevant licenses in Western-style cosmetology.?

?Threading is not mentioned anywhere in state law, yet TDLR expects threaders, some with over 20 years of experience, to immediately stop working and spend $20,000 obtaining up to 1,500 hours of instruction in government-approved beauty schools that do not even teach threading,? Hottot says. ?Further, threaders must pass government-approved cosmetology exams that do not test threading.?

Here is a link to an IJ video on the case. Despite the longstanding claim that judicial protection for economic liberties is just ?judicial activism,? such protection actually has strong support in the original meaning of the Privileges or Immunities Clause of the Fourteenth Amendment, and other clauses. The original meaning evidence is discussed at great length in Bernard Siegan?s classic book Economic Liberties and the Constitution, and some of it is summarized in Alan Gura?s brief for the petitioners in the McDonald gun rights case currently before the Supreme Court.

Even if we accept the idea that economic liberties deserve significant judicial protection, there is room for debate as to how broad that protection should be. However, this case is sufficiently egregious that it is difficult to imagine any reasonable basis for judicial protection of economic liberties that would allow this regulation to be upheld.

CONFLICT OF INTEREST WATCH: As regular readers probably know, I have done various pro bono projects for the Institute for Justice over the years, and was a summer clerk there when I was a law student.

Full post as published by The Volokh Conspiracy on December 17, 2009 (boomark / email).