How Judges Brown and Sentelle actually hurt property owners and entrepreneurs

Judges Janice Brown and David Sentelle drew attention in the blogosphere last week for their rip-roaring opinion in Hettinga v. United States. The judges were right that courts have abandoned their constitutional duty to protect the rights of property owners and entrepreneurs, by imposing the so-called “rational basis” test under which the government virtually always wins—a test that has no foundation in the Constitution.

But they—and their colleague, Judge Thomas Griffith—actually got the “rational basis” test wrong on its own terms, and in a crucial way that deserves Supreme Court review.

Yes, the “rational basis” test requires plaintiffs to disprove every rational basis for a challenged law—a profoundly illogical test whose flaws I catalogue in The Right to Earn A Living. But in theory it’s still possible for plaintiffs to win rational basis cases. It was done in Romer v. Evans, City of Cleburne, Craigmiles, Merrifield, and several other cases. Plaintiffs do this by bringing in evidence to disprove the rationality of the law.

But in the Hettinga case, the court ruled that even that is not allowed. That’s because the court dismissed the Hettinga case on a motion to dismiss. It didn’t rule against Hettinga on the merits—it held that he isn’t even allowed to introduce facts in an attempt to meet the absurdly heavy burden imposed on him by the “rational basis” test. The court tied lead weights to his legs before the marathon—and then didn’t even let him try to run.

That isn’t how the rational basis test works even according to its proponents. If the government can get cases against it dismissed at the outset merely by articulating a “rational basis”—before any evidence has even been gathered—then the “rational basis” test will really be nothing more than a mere pretext. Judges Sentelle, Brown, and Griffith acknowledged that Hettinga was arguing “that the district court erred by drawing factual conclusions at the pleading stage,” but they still allowed the trial court to throw the case because “the government provided an explanation that is…rational on its face.” This makes “rational basis” a meaningless magic word which can get a case thrown out without even the minimal judicial review that a plaintiff is entitled to under Romer and other cases. The Hettinga case is, to my knowledge, the first Court of Appeals decision ever to say that courts can dismiss rational basis cases at the 12(b)(6) stage—before evidence-gathering—because the government merely articulated a “rational basis.” I know of only one trial court that’s gone that far—and that case was vacated as moot on appeal, making it no longer good law.

Interestingly, the problem here parallels a problem that I have heard some antitrust lawyers complain about, involving the Supreme Court’s decisions in Twombly and Iqbal, two cases that held that courts should dismiss complaints that allege “implausible” facts. These lawyers complain that the facts alleged in a complaint sometimes seem “implausible” until the facts are gathered, and then it becomes clear that the complaint really was right after all. Letting courts dismiss cases at the threshold means meritorious cases aren’t heard. I don’t know if that’s true in the antitrust context, but it’ll certainly be true in constitutional law if the Hettinga decision is allowed to stand.

Judges Brown and Sentelle were right to condemn “rational basis”—it typically does mean that private property and economic liberty are “at the mercy of the pillagers.” But it doesn’t go as far as they said in their opinion for the court, and by misconstruing it, they’ve actually harmed entrepreneurs and private property owners even more.

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