Readers of this blog may recall Cato’s filing an amicus brief for an appeal in the Eighth Circuit supporting two Missouri women’s challenge to state requirements that they become licensed as cosmetologists or barbers before being allowed to work as African-style hair braiders. Obtaining the mandatory license from the Missouri Board of Cosmetology & Barber Examiners entailed undergoing a minimum of 1,000 hours of mostly irrelevant training and passing an exam with both written and “practical” (term used loosely) components.

Not only is over 90 percent of the required training completely inapplicable to the practice of African-style hair braiding, but seven of the nine board members are barbers, cosmetologists, or cosmetology school owners with a direct financial incentive to limit competition.

None of that mattered to the three judges on the Eighth Circuit panel, who yesterday after a full year of foot-dragging issued a perfunctory opinion upholding the district court ruling in the board’s favor. Instead of finally providing two aspiring entrepreneurs their day in court before a neutral arbiter, this ruling continues the pattern of courts’ violating bedrock due-process principles by rubber-stamping occupational regulations under the flimsiest of rationales.

Beginning with a single footnote in the 1938 case United States v. Carolene Products Co., the Supreme Court has scrutinized rights violations differently depending on how it classifies the right in question and whether the violation harmed “discreet and insular minorities.” (Ironically, the plaintiffs in Niang are both women and African Americans—two classes traditionally protected under this principle.) For a law that infringes so-called “fundamental” rights, courts apply what is known as “strict scrutiny” and require governments to prove that the law is narrowly tailored toward achieving a compelling government interest.

On the other end of the spectrum are economic rights that courts have decided are less important, with infringements only being reviewed under the much less rigorous “rational basis” standard. Under this lower standard, it is up to the person challenging the law to prove that it is not “rationally related” to a “legitimate” (real or imagined) government interest.

In 1955, the Supreme Court extended this standard to new extremes in Williamson v. Lee Optical Co., upholding a law that allowed only optometrists and ophthalmologists (but not mere opticians) to fit or duplicate lenses for glasses. After conjuring a number of potential justifications, the Court dismissively ruled that it was “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 (emphasis added).” While the entire concept of tiered scrutiny is itself deeply flawed, the district and now Circuit courts in Niang failed to meaningfully apply even the over-deferential rational basis standard, choosing instead to parrot (and even surpass!) Lee Optical as a means of tipping the balance further in favor of the Board.

In its initial ruling upholding the challenged licensing scheme, the district court engaged in factually unsupported speculation and invented justifications that the board itself had failed to imagine, thus denying the challengers any way to challenge either the rationality of the government’s means or the legitimacy of its ends. Now, by reiterating that the district court was “not bound to consider only the stated purpose of a legislature,” the Eighth Circuit has blessed the practice of trial judges’ acting as the government’s de facto co-counsel.

Even more outrageously, the opinion cited the absurd language from FCC v. Beach Communications (1993) holding that challengers must not only refute any justifications actually advanced by the state, but also negate “every conceivable basis which might support” the statute or regulation under review. What are the actual limits of this amorphous standard? Could a court rationalize requiring a hair braider to obtain a degree in economics to properly price her services? A medical degree with experience in pain management in order to protect the tender-headed? Mandatory viewing of 80’s hair metal videos in order to warn against the dangers of hair styling gone terribly wrong?

Not only must such decidedly irrational rationales be addressed, but challengers apparently must also invent time travel in order to challenge judicial justifications that only appear after all briefing and argument has been completed!

In any event, this will be appealed to the Supreme Court, where the justices will have the opportunity to reevaluate both the proper level of scrutiny used to assess occupational licensing and how levels of scrutiny are to be applied by courts more broadly. And while the panel opinion is certainly troubling, legal scholar and Cato senior fellow Randy Barnett offered an important reminder:

Court of Appeals judges are limited by precedent. We need [Supreme Court] Justices who will reconsider this constitutional wrong turn. But decisions like this don’t tell us if they will if elevated. And sadly neither will confirmation hearings.

One further disturbing aspect of the ruling is thus that one of the panelists, Judge Steven Colloton, appears on President Trump’s list of potential Supreme Court nominees. By contrast, another member of the Trump shortlist, newly confirmed Fifth Circuit Judge Don Willett, wrote a concurrence while on the Texas Supreme Court that addressed this very issue of overly burdensome occupational licensing in a manner that properly considered plaintiffs’ right to earn an honest living in the face of arbitrary government regulations.

If nothing else, Niang should remind us all of the need for substantive debate at future judicial confirmation hearings, not frivolous demagoguery.

Our thanks to research assistant Anthony Gruzdis for his help with the post.