One of the encouraging signs for the future of liberty is the spread of state-based groups engaging in constitutional litigation, often with a focus on economic liberty -- protecting the right to earn an honest living and thus to pursue the American Dream. That's why I recently joined the Mississippi Center for Public Policy (MCPP) as a nonresident senior fellow and chairman of the board of advisors to MCPP's legal arm, the Mississippi Justice Institute (MJI).
Today, MJI filed a new federal lawsuit and joined the ongoing legal fight against occupational licensing laws. MJI’s client is Dipa Bhattarai, a Mississippi eyebrow threader.
If you don’t know, eyebrow threading is a very safe method of hair removal that doesn't involve the use of sharp implements, harsh chemicals, or heat. Instead, threading artists use nothing but twisted cotton thread, acting like a mini-lasso, to remove stray hair. It's also much more precise, convenient, and affordable than waxing and tweezing. It's an ancient technique that has been practiced for centuries in South Asian countries like Nepal, where Dipa was born.
Dipa was attending the Mississippi University for Women when she saw an opportunity to pursue her dream of starting a business. When she threaded her friends’ eyebrows as a favor, word quickly spread across campus of this superior technique. She soon had more classmates asking for her help than she could keep up with. Seeing an unserved market, Dipa opened a threading business with her brother. In less than two years, they opened a second location and hired four employees to accommodate all of their customers.
Dipa was truly living her American Dream—until an inspector from the Mississippi State Board of Cosmetology showed up and forced her to shut down her business. Dipa did not have an esthetician’s license, you see, which is required for beauty care in Mississippi.
The problem is that obtaining an esthetician’s license requires taking 600 hours of beauty school classes — which can cost up to $12,000 — even though the classes don't teach anything about eyebrow threading.
Fortunately, Dipa will have some persuasive authority in her corner. Our friends at the Institute for Justice won a similar case in Texas in 2015. In Patel v. Texas Department of Licensing & Regulation, the Texas Supreme Court faced a state constitutional challenge to a rule that threaders obtain esthetician licenses requiring 750 hours of irrelevant instruction.
The Texas Supreme Court adopted a new standard of review that was more stringent on regulations impinging on economic liberty than federal "rational basis" review. Notably, Justice Don Willett (now a judge on the U.S. Court of Appeals for the Fifth Circuit), joined by two other colleagues on the nine-member court, insisted in his concurrence that the law would have been struck down even under the rational-basis standard.
If you missed it, then-Judge Willett’s concurrence is worth a read. Indeed, it almost certainly propelled him onto President’s Trump’s list of potential Supreme Court nominees. Here is a sample:
This case concerns far more than whether Ashish Patel can pluck unwanted hair with a strand of thread. This case is fundamentally about the American Dream and the unalienable human right to pursue happiness without curtsying to government on bended knee. It is about whether government can connive with rent-seeking factions to ration liberty unrestrained, and whether judges must submissively uphold even the most risible encroachments.
I'll be anxiously watching to see if MJI can prove Willett right: irrelevant licenses for eyebrow threaders can't survive even rational-basis scrutiny. It’s time to free the eyebrow threaders from this hairy situation.