Rational Basis and Rent-Seeking

November 20th, 2013

During the Rosenkranz debate at the Federalist Society convention, Randy Barnett referred to the legislation at issue in Williamson v. Lee Optical as “rent seeking legislations,” and said that courts should scrutinize laws that run afoul of this public choice principle. Randy made a similar point in his WSJ review of Clark Neily’s new book:

Countless such restrictions on individual liberty are supposedly needed to protect the health and safety of the public. But as Mr. Neily explains, under the current doctrine favoring restraint, government lawyers needn’t provide any actual proof of a genuine health or safety problem, or show that the law’s restrictions address whatever problems may truly exist. Indeed, existing doctrine requires judges to make up reasons for such restrictions, no matter how disconnected these rationales may be from why the regulations were adopted.

Thus does constitutional law enshrine what economists call “rent seeking” by the politically powerful. The price is the economic liberty that once fueled the American dream.

A quick search shows that Randy used this phrase in 2012. I couldn’t find much else on point in Westlaw JLR. There is some stuff (including stuff I wrote) about how heightened scrutiny can ferret out rent-seeking. But I haven’t seen the argument made that the fact that a law was the product of rent-seeking warrants a closer look.

Is this a new move? I don’t recall ever seeing a constitutional theorist use the phrase “rent seeking” in the context of judicial review.

It’s funny. In 2007, when I attended the IJ Summer Conference, I was doing some moot court exercise, and I think Clark Neily (or maybe it was Scott Bullock) was my judge. They were pressing me on Kelo, and asking me to identify a principle of what the government could and could not take private property. I think I said something to the effect of, courts should scrutinize against rent-seeking. The judge replied that “rent-seeking” was not a principle embodied in the Constitution.

In any event, I have an entire slew of posts that are Rent-Seeking related, even in the constitutional context.