All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few comments.
First, some people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional. That’s actually incorrect. The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality. If a statute is arbitrary or irrational, then it’s unconstitutional. That’s con law 101.
Next, some readers may not yet be convinced that the facts will show the genuine irrationality of throwing our clients in prison for using charitable funds to make more marrow donations happen. One enterprising commentator even did independent research on statistics to try to show that donating marrow isn’t as safe as we say it is.
We don’t need to prove the facts in a blog post (that’s for trial), but this discussion of the facts highlights something important: facts matter. As I said yesterday, a presumption of constitutionality is fine as long as it’s ultimately rebuttable through the presentation of evidence. The problem with taking the current standard (“negative every conceivable justification”) too literally is that doing so amounts to transforming the rebuttable presumption of constitutionality into an irrebuttable one.
Fortunately, courts don’t generally take the “negative every conceivable standard” literally. There are hundreds of winning rational basis cases across the country and the winning plaintiffs didn’t actually “negative every conceivable” justification for the invalidated government action. And what would it mean anyway to “negative” something and how could a lawyer know when she’d “negatived” literally every “conceivable” justification for a challenged government action without first deposing the judge and opposing counsel (as well as future appellate judges) to determine how many “conceivable” justifications are in play?
Another commentator remarked that it made a positive difference to him that our bone marrow case is an as-applied challenge. That commentator was right that we’re not trying to strike bone marrow from the statute on its face. We just don’t think it’s even minimally rational to apply criminal sanctions to our clients—who simply want to operate a pilot program using charitable funds from third-parties to incentivize more bone marrow donations—because applying the law to their pilot program advances none of the interests Congress was trying to serve with the statute. We’ve brought exactly the sort of narrow as-applied challenge that the Supreme Court says it prefers.
Kudos to the commentator who pointed out that just because you have life-rafts (legislatures) doesn’t mean that you don’t also need life-preservers (rights and judicial review). Some people seem bothered by the fact that we’re taking this case to court, arguing that we should just try to get the legislature to repeal the law. But we have three branches of government for a reason, and each of them has an independent duty to the Constitution. The fact that Congress can repeal a law doesn’t remove the judiciary’s independent obligation to apply the Constitution any more than the President’s ability to veto an unconstitutional bill relieves Congress of its independent responsibility to ensure that it send only constitutional bills to the President’s desk.
Thus, while our case is unusual, it isn’t radical. The specific right we’re seeking to vindicate is well-grounded in American history. Our challenge is as-applied and narrow. And we’re just asking courts to do what they have done in hundreds of other cases where citizens have prevailed on rational basis claims.
Thanks again to Eugene and everyone else.