This is something I’ve been thinking about since I learned the IJ way.

As you all probably know, the rational basis test is the lowest tier of scrutiny Courts apply to judge the constitutionality of governmental action. If the court can think of any explanation why a governmental action has a rational basis, no matter how absurd, even if it is different from the government’s proffered justification, the court will uphold the governmental action. Except in very few cases, like Craigmiles, under the rational basis, the Court provides no meaningful scrutiny whatsoever.  In this post, I am not discussing the policy justifications of why the rational basis is applied. Those are thoughts for another time. Rather, I just want to focus on what the court is actually doing.

One way to look at it, is to compare treatment of Lee Optical style rational basis review to a nonjusticiable political questions. If you look at what the court is doing, they are not actually judging, but in fact are leaving the determination to other branch. The question is, why bother calling it a test? There is no test. They definitively punt to the legislative branches. And this punt is so huge, it would definitely hit the new scoreboard at Cowboys Stadium.

If the courts are not willing to scrutinize an action, maybe the courts shouldrather abstain altogether, like they do with the political question doctrine. But perhaps, the courts need to fashion some test, however meaningless, to maintain the appearance of judicial legitimacy.

I’m working on an article on this point. Possible titles, “Why the rational basis test is not a test at all, but an abstention doctrine. ” Or maybe, “Drop the charade. Rational basis test as a political question.”

I’ll post some more musings along the way.