The Rational Basis Test: The Crescendo

Adam Shelton · April 23, 2021

This is a third in a series of posts examining the creation and evolution of the rational basis test. The first explored the origins of the test found in the opinions of Justice Harlan, Justice Holmes, and James Bradley Thayer. The second examined how to test became established during the New Deal Era and how it developed from a generally deferential test to an even more deferential “test.”

This post will explore what we all hope is the high-water mark of the rational basis test as seen in two Supreme Court cases decided in June 1993: F.C.C. v. Beach Communications and Heller v. Doe.

But first, a quick refresher. The rational basis test is one of the three tiers of scrutiny the Court employs when evaluating constitutional challenges to laws, orders, and regulations. The level of scrutiny the Court will use, or how closely the Court will look at a law, depends on the right a person accuses the government of violating. Some rights, like free speech, will receive meaningful protection from the judiciary. When evaluating laws challenged as a violation of free speech, the courts will generally apply something known as “strict scrutiny.” This means that the court will only uphold the law if the government can prove that it is narrowly tailored to achieve a compelling government interest. Courts will also require such a showing if the law discriminates against discrete and insular minorities.

But other rights are not so lucky. Private property rights and the right to earn an honest living are generally only protected by the rational basis test. When a person challenges a licensing law for violating his right to earn an honest living the court will require her to prove that the law is not rationally related to any legitimate government purpose. That is, for most rights, the burden is on individuals to prove that the government is violating their rights, rather than requiring the government to prove what it is doing is constitutional.

Originally, when the Court started employing the rational basis test in earnest during the New Deal Era, the Court did require at least some level of rationality. For example, in Nebbia v. New York in 1934 the Court explained that even under the rational basis test, a law still could not be arbitrary or discriminatory. Yet that requirement was all but abandoned by 1955 when the Supreme Court decided Williamson v. Lee Optical. There, the Supreme Court held that even a law that enacts needless requirements and that lacks logical consistency could be constitutional, even where the law only might solve a perceived problem.

A Pair of 1993 Decisions

Fast forward to March 1993 when the Supreme Court heard oral arguments in two cases, F.C.C. v. Beach Communications and Heller v. Doe, that constituted further erosion of the rational basis test as an actual test.

First for F.C.C. v. Beach Communications, which the Court heard arguments in last, but decided first. This case involved a challenge by satellite and television facilities to an F.C.C. rule. The rule required such facilities to be franchised by local governmental authorities if any transmission lines from a rooftop satellite to the units in a building complex connected with any lines from a separately owned or managed building or crossed a public right-of-way. Beach Communications challenged the regulation, alleging that it violated the equal protection guaranteed by the Fifth Amendment’s Due Process Clause by distinguishing between those companies that serviced buildings only owned by one person and those that served buildings separately owned and managed.

As the rule did not draw a distinction between or discriminate against any discrete or insular minorities, the Supreme Court determined the law only had to pass rational basis review. Justice Thomas, writing for the majority, gave a detailed explanation of the deferential rational basis “test.” The Court explained that “[i]n areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” That is, if there are some “plausible reasons” for the classification then the Court will uphold the law against a constitutional challenge. Thus, it is the burden of those challenging the classification “to negative every conceivable basis which might support it.” The Court explained that the real reason or motivation for the classification is irrelevant; thus, there is no need for the government to present any facts or evidence and classification “may be based on rational speculation unsupported by evidence or empirical data.”

The idea that it was up to the individual to “negative every conceivable basis” coupled with the holding that the government is not required to present any reason or evidence supporting a law subject only to rational basis review opens the door to a troubling situation. Under this structure, judges can help the government think up a possible conceivable basis. If a person must negative every conceivable basis and the government does not even have to provide evidence, reasons, or motivations, then the only way a judge can determine whether the plaintiff has negated “every conceivable basis” is to ponder potential reasons themselves.

The Court held that the rules easily met the low threshold. The Court explained that the distinction had previously been in place before this new regulatory scheme, and continuing the distinction was itself a rational basis. The Court also explained that the rule could prevent the formation of monopolies, which was also a sufficient rational basis.

A few weeks later, in Heller v. Doe, the Supreme Court issued another opinion about the rational basis test. There, involuntarily committed “mentally retarded” persons (the terminology used by the relevant Kentucky statutes) in Kentucky challenged, as violating equal protection, Kentucky’s different procedures for mentally retarded persons versus persons with mental illnesses. There were two main differences in the procedures. First, at the final commitment hearing, the burden or proof for “mentally retarded” persons was only clear and convincing evidence, while the burden of proof for mentally ill persons was beyond a reasonable doubt. Second, the commitment proceedings for mentally retarded persons, unlike mentally ill persons, allowed for “guardians and immediate family members” of “mentally retarded” persons to be parties in the proceeding, which includes “the right to present evidence and to appeal.”

Again, like Beach Communications, the Supreme Court held that the law was only subject to rational basis review because the distinction was not based on any suspect classification, like race or gender, and no rights the Court had considered fundamental were implicated. In explaining the decision, the Court pulled heavily from the recent decision in Beach Communications. Quoting from Beach Communications, the Court explained “that rational basis review in equal protection analysis is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”

The Court explained that the legislature need not articulate “the purpose or rationale supporting” the classification and that the Court will uphold legislation as long as “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Further, “courts are compelled under rational-basis review to accept a legislature’s generalizations even when there is an imperfect fit between means and ends.”

The Court here held that Kentucky’s law passed muster under the rational basis test. The Court explained that mental illness was easier to diagnosis, which accounted for the lower burden of proof at the final commitment hearing. This alone was enough, as a statutory classification will only fail rational basis when it “rests on grounds wholly irrelevant to the achievement of the State’s objective.”

But unlike Beach Communications the opinion was not unanimous. Four Justices thought that the classification failed even the deferential rational basis test. The dissenting Justices explained that “[t]he question whether a lower burden of proof is rationally justified, then, turns not only on whether ease of diagnosis and proof of dangerousness differ as between cases of illness and retardation, but also on whether there are differences in the respective interests of the public and the subjects of the commitment proceedings, such that the two groups subject to commitment can rationally be treated differently by imposing a lower standard of proof for commitment of the retarded.”

Unfortunately, the reasoning only convinced four Justices. The fact that even four Justices found that the classification violated the rational basis test is a victory of some sorts. But the fact the Court decided this case just after Beach Communications and reinforced the deferential language and ideas of that decision allowed the deferential version of the rational basis “test” presented in Beach Communications, one in which judges are allowed to help out the government in thinking about reasons for a challenged law.

Going Forward: Hope on the Horizon

With these cases, the courts have continued to employ this very deferential version of the rational basis test. Because the Supreme Court explained that the legislature’s actual motives are irrelevant when a law is only subject to rational basis scrutiny, Courts of Appeals have upheld laws that have purely protectionist purposes. This is exemplified by the Tenth Circuit’s decision in Powers v. Harris, an IJ case challenging an Oklahoma law which required anyone who wanted to sell caskets to first get a funeral director’s license and operate out of a licensed funeral home. The Tenth Circuit, citing Beach Communications, explained that the protectionist motives were meaningless; as long as there is some reasonable basis for the rule, the law will be upheld. Countless other cases also provide examples of how toothless the rational basis test has become.

Yet, there is hope. In recent years both federal and state courts have been searching in their rational basis review of economic regulations. Some of the cases, many litigated by IJ attorneys, will be discussed in the next post, which will be the final post in this series.

Adam Shelton is a fellow with IJ’s Center for Judicial Engagement