Texas Supreme Court gives itself power to strike down health & safety regulation

[jimmy olsen]

Ugghhh...Lochner reviosinists. 

At least this isn't something we'll be seeing at the national level. Justice Roberts when railing against the marriage decision, compared to it repeatedly Lochner to the distress of many conservatives.

http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/texas_supreme_court_strikes_down_eyebrow_threading_regulations_return_to.html

Texas Could Become an Even More Dangerous Place

The state Supreme Court just gave itself the power to strike down health and safety regulations it finds "oppressive."

By Mark Joseph Stern

Threading eyebrows can be a dangerous business. Without proper sanitation, threading—a form of hair removal that uses thin strings to shape eyebrows—can spread highly contagious bacterial and viral infections, including flat warts, pink eye, ringworm, and staph. For that reason, Texas required threaders to undergo 750 hours of training in order to practice their craft professionally, the same amount of training that other cosmetology specialists must receive.

But threaders didn't like all that training—so they asked the Texas Supreme Court to simply strike the regulation down. In late June, the court obliged. It granted itself the power to strike down any health and safety laws it deems "oppressive."

The startling decision revives a dangerous, widely discredited doctrine that gives judges authority to strike down economic regulations that interfere with the free market. By resuscitating it, the Texas Supreme Court has effectively declared that laissez-faire capitalism is the only true form of American liberty.

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The notion that American courts should impose a free market ideology on the laws they interpret has a long, mottled history. At the beginning of the 20th century, the United States Supreme Court did just that, invalidating regulations like maximum hour and minimum wage laws. The notorious period is named the Lochner era after one infamous case, Lochner v. New York, in which the court considered a New York law that regulated bakeries. At the time, many bakers were brutally overworked in unsanitary conditions, and they frequently fell victim to lung inflammation and rheumatism. To prevent bakery owners from straining their workers, New York barred bakers from working more than 10 hours a day or 60 hours a week.

In a 5–4 decision, the Supreme Court struck down the law as a violation of "liberty of contract." Bakery workers, the majority wrote, have a constitutional right to work out individualized contracts with their bosses free of undue legislative meddling. If an employee wants to work more than 10 hours a day, he has a constitutional right to do so.

And where, exactly, did this right come from? The Due Process Clause of the Fifth and 14th amendments declare that no person may be deprived of "life, liberty, or property without due process of law." This "liberty," the court wrote, includes the liberty of contract. And if a state wanted to interfere with that liberty, it had to prove its regulation to be "reasonable and appropriate" and not "unnecessary and arbitrary."

The problem with this theory is that courts are ridiculously unqualified to decide whether economic regulations are "reasonable" or "unnecessary." When legislatures pass health and safety laws, they usually do so after extensive hearings and fact-findings. Members of the public and the targeted profession can petition for stricter or laxer regulations. If, in practice, the regulation is too burdensome or lenient, the state can adjust it. That is called legislating, and it is generally considered a job for the legislature.

A Supreme Court ruling, on the other hand, is both clumsy and final. Justices can either uphold a regulation or invalidate it. And if they scrap it, the legislature has to try to pass a new law that might satisfy the whims of the court and its extremely dubious reading of the Constitution.

For more than three decades, the Supreme Court used this "liberty of contract" justification to strike down progressive reforms and New Deal programs. Then, finally, in 1937, the court reversed itself, disavowing its laissez-faire constitutional doctrine. The court still enforces the "liberty" guaranteed by the Due Process Clause—but now it protects only those fundamental rights relating to personal dignity and autonomy, which judges are much better at describing and defending. Justice Anthony Kennedy's marriage equality opinion, for instance, rests largely on the Due Process Clause, holding that decisions relating to marriage and intimacy are fundamental to the Constitution's conception of liberty.

Like most state constitutions, the Texas Constitution contains a clause that's nearly identical to the Due Process Clause. For decades, the Texas Supreme Court interpreted this provision to give the legislature power to pass health and safety laws that were "rationally related to a legitimate government interest." That all stopped on June 26. Under the court's new doctrine, any economic regulation that is "so unreasonably burdensome that it becomes oppressive" is now invalid as a deprivation of economic liberty. And what constitutes an "oppressive" regulation? That's entirely for the Texas Supreme Court to decide.

To see just how arbitrary and malleable this newly minted doctrine is, consider its application to Texas' threading law. Of the 750 hours of training threaders must undergo to become fully licensed, about 40 percent is not directly related to threading. That may be a problem—but it is clearly a legislative problem, one that threaders could seek to solve through the democratic process by petitioning the legislature to reduce their training hours. Texas is not depriving threaders of any fundamental rights, like the right to vote or marry, which courts properly shield from popular prejudices.

Texas regulates many professions that affect the public safety—and how much training is too much? To take one example, Texas requires dental hygienists to undergo 15 hours of continuing education every year. North Carolina? Six hours—every three years.

Would the Texas Supreme Court strike down the dental hygienists' training rule as unconstitutionally oppressive? Don't bet against it. In a lengthy concurring opinion that is both charming and terrifying, Justice Don Willett—Twitter's favorite judge—argued that the court should be more tenacious about preserving Texas' "spirit of daring and rugged independence" by protecting "economic dynamism." Texas' "industrious entrepreneurs," Willett writes, are imperiled by "bureaucratic red tape" and "interest-group politics." Too many "irrational licensing laws," the justice explains, oppress "hard-working Texans" who want "to better their families through honest enterprise." Willett declares that occupational licensing is "often less about protecting the public than about bestowing special privileges on political favorites." Thus, the court should fight back by striking whatever laws it deems to be "nonsensical government encroachment" on "economic liberty."

Willett's disquisition would make a fine Wall Street Journal editorial. He even devotes a 1,000-word footnote to rehabilitating Lochner, claiming that "legal orthodoxy" is "evolving" toward a belief in the decision's "correctness as a matter of constitutional law." As a judicial opinion, however, Willett's concurrence is an unnerving declaration of total judicial supremacy over the legislature's ability to regulate health and safety. From its contracting economy to its sky-high uninsured rate, Texas has a lot of problems. If the state's Supreme Court follows through on Willett's threat, it's about to have a lot more.

[The Brain]

Courts are "ridiculously unqualified" to decide on stuff regarding laws?

[The Minsky Moment]

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.   It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

[Ideologue]

or, if you like, as tyrannical, as this, and which, equally with this,

But I use too many commas.

[DontSayBanana]

or, if you like, as tyrannical, as this, and which, equally with this,

But I use too many commas.

Reread some of my posts, and you'll feel better; I abuse commas, semicolons, and hyphens.

[stjaba]

I really don't take strong issue with this. The Due Process clause has been stretched so far that it can be interpreted to mean anything and support any position.

To me, the real issue with the Lochner era was that the federal Supreme Court was striking down state safety and regulation laws, and essentially limiting state "police" powers in the process, all with a flimsy justification. So the Lochner decision and its progeny created real federalism issues.

I am much less concerned with a state supreme court limiting that own state's police powers, which is what the Texas Supreme Court has done. If there is a problem with the Texas Supreme Court's interpretation of the Texas Constitution, it is much easier for Texas to amend its constitution to fix that interpretation than it would be to amend the U.S. Constitution.

[DontSayBanana]

I really don't take strong issue with this. The Due Process clause has been stretched so far that it can be interpreted to mean anything and support any position.

To me, the real issue with the Lochner era was that the federal Supreme Court was striking down state safety and regulation laws, and essentially limiting state "police" powers in the process, all with a flimsy justification. So the Lochner decision and its progeny created real federalism issues.

I am much less concerned with a state supreme court limiting that own state's police powers, which is what the Texas Supreme Court has done. If there is a problem with the Texas Supreme Court's interpretation of the Texas Constitution, it is much easier for Texas to amend its constitution to fix that interpretation than it would be to amend the U.S. Constitution.

Because if the court's that willing to grant themselves powers not enumerated in their constitution, they absolutely wouldn't stoop so low as to use questionable interpretations to block enforcement of a new amendment to their constitution.  Nope.  Or interpret the amendment mechanisms in such a way as to make it more difficult to amend the constitution in the first place.

Sorry, jabs, I've got to disagree- letting crap like this slide sets dangerous precedent.

[Valmy]

Who is going to 'let it slide'? That is well within the prerogative of the state Supreme Court to decide. This is the sort of government the voters here want they shall have it.

[stjaba]

I really don't take strong issue with this. The Due Process clause has been stretched so far that it can be interpreted to mean anything and support any position.

To me, the real issue with the Lochner era was that the federal Supreme Court was striking down state safety and regulation laws, and essentially limiting state "police" powers in the process, all with a flimsy justification. So the Lochner decision and its progeny created real federalism issues.

I am much less concerned with a state supreme court limiting that own state's police powers, which is what the Texas Supreme Court has done. If there is a problem with the Texas Supreme Court's interpretation of the Texas Constitution, it is much easier for Texas to amend its constitution to fix that interpretation than it would be to amend the U.S. Constitution.

Because if the court's that willing to grant themselves powers not enumerated in their constitution, they absolutely wouldn't stoop so low as to use questionable interpretations to block enforcement of a new amendment to their constitution.  Nope.  Or interpret the amendment mechanisms in such a way as to make it more difficult to amend the constitution in the first place.

Sorry, jabs, I've got to disagree- letting crap like this slide sets dangerous precedent.

The court is not granting itself a new power. That is just sloppy language in the article. There is nothing new about a court determining the constitutionality of a law.

As far as the basis of the decision, if you read the opinion or at least skim it, the court's reasoning is not coming out of thin air. Based on my skimming of the opinion, it looks like at the time of the last revision of the Texas constitution, the federal Supreme Court had a generally similar concept of due process as the court employs. Back then, Texas basically followed the federal law on due process. If you are a strict originalist, it is not crazy for a court to construe the due process clause in the Texas constitution in a similar fashion as the federal due process clause would have been interpreted in the 1800s.

As far as your other concerns, it sounds as though you really have a problem with the checks and balance system in general. The rule of law is based on that. I find it hard to believe that the Texas Supreme Court would deliberately mis-interpret an amendment to the Texas Constitution that effectively overruled this decision. 

[The Minsky Moment]

Based on my skimming of the opinion, it looks like at the time of the last revision of the Texas constitution, the federal Supreme Court had a generally similar concept of due process as the court employs. Back then, Texas basically followed the federal law on due process. If you are a strict originalist, it is not crazy for a court to construe the due process clause in the Texas constitution in a similar fashion as the federal due process clause would have been interpreted in the 1800s.

Lochner is abhorrent to originalism.  Robert Bork, who is the modern intellectual father of originalism, called it an abomination and held it up as the defining example of judicial over-reaching.  And for good reason - it is well known that at the time the US constitution was adopted, state economic regulation was commonplace and the due process clause was understood to have no effect on that.  The same was true in the 1840s when the Texas constitution was adopted.  The majority knows this and so points to the relevant period as 1875 when the revision occurred.  But there are two problems with this.  First, the revision had little impact on the due process clause - only adding the word "immunities" ("privileges" being already there) - a fact that the majority opinion rather inartfully attempts to conceal.  Second, the Lochner doctrine isn't really established until Lochner -- 30 years later -- leaving the majority flailing about trying to shoehorn 1880s era cases proscribing prostitutes into the doctrine. 

The originalist argument IMO is a lead balloon; the majority is on somewhat more stable ground arguing that the *modern*, post Carolene Products cases in Texas apply a somewhat less deferential standard.  But that just raises Timmy's point - if the Texas cases do so, should they?

[Scipio]

Mark Joseph Stern is the Walter Duranty of the LGBT/law media circus. Timmy, you seem like a nice kid, but for fuckssake, the guy's a goddamn idiot. The fact that he makes half of one good point does not justify putting a fucking Slate.com article on Languish. We've talked about this commie horseshit before.

[stjaba]

Lochner is abhorrent to originalism.  Robert Bork, who is the modern intellectual father of originalism, called it an abomination and held it up as the defining example of judicial over-reaching.  And for good reason - it is well known that at the time the US constitution was adopted, state economic regulation was commonplace and the due process clause was understood to have no effect on that.  The same was true in the 1840s when the Texas constitution was adopted.  The majority knows this and so points to the relevant period as 1875 when the revision occurred.  But there are two problems with this.  First, the revision had little impact on the due process clause - only adding the word "immunities" ("privileges" being already there) - a fact that the majority opinion rather inartfully attempts to conceal.  Second, the Lochner doctrine isn't really established until Lochner -- 30 years later -- leaving the majority flailing about trying to shoehorn 1880s era cases proscribing prostitutes into the doctrine. 

The originalist argument IMO is a lead balloon; the majority is on somewhat more stable ground arguing that the *modern*, post Carolene Products cases in Texas apply a somewhat less deferential standard.  But that just raises Timmy's point - if the Texas cases do so, should they?

To be clear, the originalist argument in this context does not involve consideration of how the founders would have understood the due process clause, it is how the Texas due process clause would have been interpreted and understood at the time it was enacted (which arguably was either in the 1840s or 1870s). So the Robert Bork criticism is off base since it is an orginalist critique of substantive due process in the US constitution, not the Texas constitution.

And contrary to your opinion, it looks like some people believe that there was a substantial body of law using a substantive interpretation of due process in the mid-19th century. For example, see here: http://volokh.com/posts/1235490996.shtml

For instance, as that cite notes, Robert Bork was of the opinion that substantive due process as a concept was invented in the 1857 Dred Scott decision, which is fairly contemporaneous with the Texas constitution. Other people dispute that and think that substantive due process existed before then, or that Dred Scott did not really involve substantive due process,  but the long and short of it is that there is at least some evidence that substantive due process as a concept "existed" well before the Lochner opinion, and more importantly, contemporaneously with the time that the Texas constitution was enacted. So the Texas Supreme Court's decision is at least arguably supported in my view.

In any event, I am not surprised that the Texas Supreme Court did not cite Dred Scott in its opinion. 

[The Minsky Moment]

And contrary to your opinion, it looks like some people believe that there was a substantial body of law using a substantive interpretation of due process in the mid-19th century. For example, see here: http://volokh.com/posts/1235490996.shtml

I don't see citation to any substantial body of law, I see citation to political platforms.  And in each case the particular application is to chattel slavery, which fairly could be said to be a violation of due process, whether viewed procedurally or substantively.  If you accept that Africans forcibly shipped into the US and their descendants are and were "persons" - an undeniable proposition - then it follows that their categorical subjugation violated due process.  The slave codes simply defined away the right to challenge the deprivation of freedom by categorically defining away the slave's personhood.  In that sense, Dred Scott was the proof text of the very opposite proposition it sought to establish.

Now one may argue against this particular way of seeing the problem.  But however you look at it, the Free Soil/Lincoln era GOP slavery platforms are not an attempt to articulate the Lochner doctrine of substantive due process.  That is beyond a stretch.

In any event, I am not surprised that the Texas Supreme Court did not cite Dred Scott in its opinion

Yeah exactly.
I do think it's fair to characterize Dred Scott as a precursor of the Lochner doctrine.  But that decision was the very antithesis of acceptable doctrine from 1861 on.

[stjaba]

And contrary to your opinion, it looks like some people believe that there was a substantial body of law using a substantive interpretation of due process in the mid-19th century. For example, see here: http://volokh.com/posts/1235490996.shtml

I don't see citation to any substantial body of law, I see citation to political platforms.  And in each case the particular application is to chattel slavery, which fairly could be said to be a violation of due process, whether viewed procedurally or substantively.  If you accept that Africans forcibly shipped into the US and their descendants are and were "persons" - an undeniable proposition - then it follows that their categorical subjugation violated due process.  The slave codes simply defined away the right to challenge the deprivation of freedom by categorically defining away the slave's personhood.  In that sense, Dred Scott was the proof text of the very opposite proposition it sought to establish.

Now one may argue against this particular way of seeing the problem.  But however you look at it, the Free Soil/Lincoln era GOP slavery platforms are not an attempt to articulate the Lochner doctrine of substantive due process.  That is beyond a stretch.

Did you read the link at all?

In fact, as Mark Graber, Jim Ely, and others have pointed out, by the time Dred Scott came around, there was a substantial body of state court decisions using a substnative intepretation of due process of law, or the analogous "law of the land," to protect property rights. In fact, the Supreme Court itself had invalidated several federal laws that redistributed property rights as violations of the 5th Amendment's Due Process Clause.

A Jim Ely article tracing the history of substantive due process is here: http://conservancy.umn.edu/bitstream/handle/11299/167924/16_02_Ely.pdf?sequence=1&isAllowed=y

Of particular relevance is the discussion on page 338 and going forward on "Due Process and Regulation." The article discusses an 1856 New York appellate case which invalidated a liquor regulation on due process grounds. That case is Wynehamer v. People, 113 N.Y. 378 (1856).

[The Minsky Moment]

Yes I read it.  It is wrong.  There was no such substantial body of state law.  The majority opinion in Wynehamer used the words "due process" but not at all in the same sense at Lochner.  The majority holding in Wynehamer was that the regulation was beyond the power of the legislature because it involved the outright destruction of property.  Put into modern terminology, it was a takings case, but one that invoked the language of due process. 

In Lochner, the substantive content of due process is that laws effecting liberty must be reasonable.  That is totally orthogonal to the doctrine of Wynehamer - there the majority opinion conceded the reasonability of the regulation.  Had the Lochner doctrine applied, the law would have been upheld.  The Wynehamer court ruled otherwise on the theory that any law annulling a property right is simply beyond the legislative power, regardless of object.

Wyehamer drew a sharp dissent and lots of critical commentary.  Needless to say, prohibition laws were adopted all over the US in subsequent decades and the vast majority of states rejected Wynehamer; the doctrine in that case was finally repudiated by the US Supreme Court in Mugler v. Kansas. 

When SPD appeared in Lochner, it was on a very different theory and Wynehamer was not cited.  The case is really of only antiquarian or academic interest.  The thread you cited is a good illustration of the reason why I stopped following the volokh blog despite there being a lot of interesting stuff posted there; too often it becomes an echo chamber of fringeyness.