In an article I’m working on, tentatively titled “The Fourth Tier of Scrutiny,” I contend that what we know as rational basis scrutiny is in fact two different tests. I reject the formulation of rational basis plus bite. What the Supreme Court applied in cases like Moreno, Cleburne, and Romer was a basic form of searching scrutiny, in which the government had to carry some burden. The alternate strand of rational basis review, characterized most famously by Williamson v. Lee Optical, assigns the government absolutely no burden. Although the courts attend to apply a test, in reality they are simply deferring to the elected branches, with a bit of judicial hand-waving and window-dressing. This is in effect almost an avoidance doctrine, like a political questions. Here I am placing no normative judgment on this decision, but simply aim to highlight the dichotomy.
Today in teaching Kelo v. New London, something jumped out at me from Justice Kennedy’s concurring opinion.
At first, AMK considers the level of scrutiny applied by the majority.
This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U.S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.”Hawaii Housing Authority v. Midkiff,467 U.S. 229, 241 (1984); see also Berman v. Parker,348 U.S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g., FCC v. Beach Communications, Inc.,508 U.S. 307, 313—314 (1993); Williamson v. Lee Optical of Okla., Inc.,348 U.S. 483 (1955). (emphasis my own).
Broadly speaking, Kennedy says that under the Court’s preferred approach, like in Lee Optical, the Court will not second-guess the determinations of the legislature. If the ends are constitutional, the means will not be judged. Who cares if the obvious purpose of the “comprehensive plan” was to give it to Pfizer. As long as a non-stupid-staffer was willing to prepare a report suggesting that the land would benefit the community, that is enough. Also, I get the sense (and maybe I am reading too much into the bolded portion) that Kennedy is somewhat dismissive of this type of rational-basis review, at least as applied to property rights. His concurring position may support that somewhat.
Indeed, in most respects, the Kelo standard is even more searching than that of Lee Optical. New London actually has to make up *some* plan. Under Lee Optical, the government need not supply any plan. [Update: Robert Thomas of the Inverse Condemnation Blog writes that in New York, if you don’t have a comprehensive plan, the courts will make one up for you. I would add that this is borderline Lee Optical. See also] Likewise, under Kelo, a direct transfer from A to B would be unconstitutional. Courts, applying Lee Optical, have held that an economic regulation aimed directly at protecting incumbent interests (transferring from A to B) is unconstitutional. However, recent decisions, such as the Tennessee and Louisiana casket cases (both argued by IJ) have rejected the notion that the mere transfer is a legitimate interest.
The bolded portion stresses that Kennedy views the standard of review used by the majority as a type of rational basis review used for economic regulation. This (when read in conjunction with the following paragraph) suggests that rational basis review varies by the context. There is nothing controversial with what I just said. This flows directly from Footnote 4 of Carolene Products which says that certain economic rights are subjected to lower scrutiny. Of course the 5th Amendment (Takings Clause) and the 2nd Amendment are both in the BIll of Rights, and Justice Stone wrote in Carolene that such provisions should be given heightened protection but the Justices (I‘m looking at you Breyer) routinely ignore that part of Footnote Four.
But what is novel is how this paragraph is juxtaposed with the following paragraph.
The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.
Merely calling something rational basis review does not doom it to the depths of Lee Optical or FCC v. Beach. Rather, in certain circumstances, rational basis review becomes more searching. He continues:
A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc.,473 U.S. 432, 446—447, 450 (1985); Department of Agriculture v. Moreno,413 U.S. 528, 533—536 (1973).
Here, a different type of rational basis review, as exemplified by Cleburne and Moreno (and I would add Romer), in which the court must look under the hood, and not take the government’s word for it.
These two paragraphs, laid out right next to each other, justify so well the dueling standards of what we know as rational basis. In the former, courts simply defer to the elected branches–either brazenly (Lee Optical) or superficially (Kelo). In both cases, the Court will not second-guess the elected branch’s judgments. I think it would be more intellectually honest for courts to say we abstain and defer to the political process. This would send a much clearer message than trying to obfuscate judicial process through window-dressing (see Stevens’s Kelo opinion). In the latter, courts will defer to the government, so long as an actual burden is satisfied. Covering animus with a veneer won’t cut it.
I’ll develop this more soon.