Academic journal article Northwestern University Law Review

Rationalizing Rational Basis Review

Academic journal article Northwestern University Law Review

Rationalizing Rational Basis Review

Article excerpt

It is not to be forgotten that what we call rational grounds for our beliefs are often extremely irrational attempts to justify our instincts.

-Thomas H. Huxley†

Introduction

Under the traditional model of rational basis review, courts defer to the credibility of legislative records when reviewing the constitutionality of laws touching on economic interests-a form of constitutional scrutiny this Note refers to as "deferential" rational basis review. But should courts occasionally view the credibility of such records with skepticism, rather than deference? And if so, when? As precedent now stands, the factual records underlying every type of economic legislation are subject only to deferential rational basis review, from child labor measures to minimum wage standards. Yet the liberty interests that these and other regulations infringe, and the legislative motivations behind them, are often vastly different.1 This Note argues that courts should view the factual records underlying economic legislation skeptically when that legislation (1) impedes liberty interests central to personhood, (2) burdens politically unpopular minority groups, or (3) benefits concentrated interest groups at the expense of diffuse majorities.

Supreme Court and circuit court case law suggest a breakdown of deferential rational basis review of certain economic legislation. Since 2002, three federal courts of appeals have questioned the credibility of the factual records underlying economic legislation before invalidating that legislation under rational basis review.2 Given the Court's decades-long application of this alternative to deferential rational basis review to noneconomic legislation-a form of constitutional scrutiny this Note refers to as "credibility-questioning" rational basis review3-uses of it might otherwise seem to border the unremarkable.4

Nevertheless, five courts of appeals are divided as to whether the factual records underlying certain economic legislation, including occupational licensing measures, ought to be treated skeptically under rational basis review. Three courts of appeals have engaged in such credibility-questioning rational basis review of economic legislation,5 while two have disavowed it in favor of deferential rational basis review.6 That split deepened when the Supreme Court recently denied a petition for a writ of certiorari to review a Second Circuit case holding that economic legislation is subject only to deferential rational basis review.7 The Court's denial leaves unresolved the question of whether all economic legislation is subject only to deferential rational basis review or whether certain economic legislation is subject to credibility-questioning rational basis review.

This Note argues that a per se rule against the application of credibility-questioning rational basis review to certain economic legislation is inappropriate. The normative premises behind the Supreme Court's previous applications of credibility-questioning rational basis review require such review when economic legislation implicates those premises. These premises include a presumption against legislation that impedes liberty interests central to personhood or that burdens politically unpopular minority groups. Courts should thus apply credibility-questioning review to economic legislation that does either. Furthermore, principles from other sources-the "law of nations," or ius gentium,8 and public choice theory- support the application of credibility-questioning review to certain economic legislation.

This Note proceeds in three parts. Part I discusses the constitutional framework the Supreme Court historically used to evaluate economic legislation. It then introduces the modern approach to rational basis review of economic legislation and finally examines the emergence of credibilityquestioning rational basis review. Part II discusses the circuit split between the courts of appeals for the Second, Fifth, Sixth, Ninth, and Tenth Circuits regarding whether economic legislation, including occupational licensing measures, should be subject to deferential or credibility-questioning rational basis review. …

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