There’s an episode of The Simpsons in which Homer insists that Springfield’s Bear Patrol is effective in keeping away bears. Lisa tries to explain his fallacy. “By your logic I could claim that this rock keeps tigers away,” she says.
“Oh? How does it work?” Homer asks.
“It doesn’t work,” she replies. “It’s just a stupid rock…. But you don’t see any tigers around, do you?”
“Lisa,” says Homer, resolutely. “I want to buy your rock.”
I thought of this when reading Prof. Roosevelt’s argument that the decision in Bruner v. Zawacki proves that the minimal scrutiny courts apply to cases involving economic liberty is working just fine. In fact, the rational basis test works just about as well as Lisa’s rock.
Yes, Raleigh Bruner was one of the fortunate ones to win a rational basis case—which, as the court acknowledged, is “a daunting task.” But, as the court also acknowledged, the decision in Bruner’s case conflicts with the Tenth Circuit’s decision in Powers v. Harris, which says legislators may block entrepreneurs from entering a trade solely to grant an economic favor to established businesses, without any regard whatsoever for public health and safety concerns. And there are plenty of examples of courts upholding arbitrary and irrational restrictions on economic liberty, on the theory that such questions are best left to the legislature. The Bruner case is a nice step forward, but it’s only one decision. And the rational basis test—a legal theory with no foundation whatsoever in the Constitution of the United States—stands as the biggest obstacle. It’s not just a stupid rock—it’s a giant, teetering boulder.
First, that test requires a plaintiff to disprove the rationale for the law. This is problematic to begin with, since forcing someone to prove a negative is, literally, impossible. Logically speaking, the burden of proof should rest on the government, which asserts that it is justified in restricting a person’s liberty—not on the person who wishes merely to be left alone. Shifting the burden as the rational basis test does is illogical, and it loads the dice against plaintiffs who are usually not in a position to obtain legal assistance and take on the government.
But it gets worse: courts don’t just require plaintiffs to disprove the actual basis for the government’s restrictions on individual liberty. Sometimes, though not always (inconsistency is just part of the charm here in Rational Basis Land!) the plaintiff is required to disprove purely hypothetical, even absurd rationalizations for the law—even rationalizations the legislature did not have in mind when it passed the restriction on freedom. This is why Clark Neily refers to the test as the “rationalize-a-basis” test—if the court can imagine a legislator thinking that the law could be a good idea for some reason, it’s constitutional.
Imagine for a moment that this test were applied in criminal law. A person’s charged with murder. First, he’s forced to prove his innocence. That would be bad enough, but suppose he accomplishes it. Turns out he still loses, because the judge announces “You disproved the prosecution’s case, but I can think of a way you might have done it! Guilty!” Would we tolerate this for an instant? Yet that is the test applied in the realm of economic freedom, a right with deep roots in this nation’s history and tradition, and which Justice William Douglas once called “the most precious liberty that man possesses.”
But the rational basis rock also sways back and forth unpredictably. In some cases, the Supreme Court has said that the plaintiff in such a case must invalidate every conceivable justification for a challenged law—which as I’ve said is literally impossible—but in others it’s refused to speculate about possible justifications. On some days, it has said that it is enough if lawmakers might have thought the law was a good idea. On others, it has said that a law must still have some genuine connection to the purposes it’s meant to serve. Sometimes, the Court has said that legislative decisions are “well-nigh conclusive” when it comes to the rational basis test. In others, it’s said that the test is “not toothless.”
One especially disturbing development is the recent tendency of courts to dismiss rational basis lawsuits under Federal Rule of Civil Procedure 12(b)(6) if the government just says, without any evidence, that the challenged law is rational. Close sesame! This is not an exaggeration. Consider another of my cases, that of Hein Hettinga, whose Arizona-based dairy operations were exempt from certain (economically insane) federal restrictions on the dairy industry. When his competitors learned about it, they managed to get legislation passed to restrict Hettinga’s freedom—not because he was a threat to the public—nobody even alleged that—but because they didn’t want the competition. Hettinga sued, arguing, among other things, that the law violated his right to equal treatment under the Fifth Amendment.
The district court threw out the case on a 12(b)(6) motion because the federal government argued that, in general, dairy regulation was a good idea. Now, a 12(b)(6) motion is brought before a plaintiff is allowed to introduce evidence; a judge considering such a motion is supposed to assume that everything the plaintiff says is true, and only throw out those cases in which the plaintiff couldn’t possibly win even if he proves everything he alleges in his complaint. But in Hettinga’s case, the judge decided that it was unnecessary to wait for evidence, because as long as the government merely says a law is rational, that’s enough for it to win.
Amazingly, the D.C. Circuit agreed. Although Judges Brown and Sentelle expressed strong disapproval of the rational basis test itself—rightly seeing it as excessively deferential—they nevertheless held that trial judges can dismiss such lawsuits without even being given the opportunity to do what the rational basis test requires them to do: introduce evidence proving the law is irrational. (Sadly, the Supreme Court declined to review Hettinga’s case.)
Now, that can’t be right—and it’s inconsistent with decisions of other circuits and the Supreme Court itself—but there are conflicting precedents on this question, even from the Supreme Court. And the Fourth Circuit also recently allowed a trial court to dismiss a rational basis challenge prior to receiving evidence, even though that same Circuit has already ruled that such dismissals are improper.
Finally, there’s the question of why Lisa’s rock is only used in some cases and not in others. There’s nothing in the Constitution directing courts to apply heightened scrutiny to, say, flag-burning or nude dancing or the right to travel, while applying only this cursory rationality standard to rights like private property and the right to earn a living. If, as Prof. Roosevelt claims, the legislature “is better at deciding what serves the public interest” when it comes to taking away people’s homes and handing them to private developers, then why is it not also better suited to decide how we may pray, or what we may publish, or whom we may sleep with, or whether we may travel, or whether we may obtain abortions? The answer is clear: such an outcome flows from the political preferences of the legal elite, not from the text or principles of the Constitution. As Justice Scalia has observed, “ [t]he picking and choosing among various rights to be accorded [judicial] protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called ‘economic rights’ (even though the Due Process Clause explicitly applies to ‘property’) unquestionably involves policymaking rather than neutral legal analysis.” Yet the political philosophy of the Constitution, not of Progressivism, should guide our jurisprudence.
Given the confused, arbitrary, logically impossible, imagination-driven standards that govern the rational basis test, it’s no wonder that Justice John Paul Stevens—hardly a spokesman for laissez-faire—called it “tantamount to no review at all.” In fact, today’s courts often treat rational basis as a Get Out Of The Constitution Free Card, or employ it strategically to ignore clear constitutional language, like the Public Use Clause of the Fifth Amendment, while simultaneously enforcing constitutional protections that they do care about.
I for one will not buy that rock.