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Ninth Circuit Strikes Down Pest Control Licensing Scheme:
Here's some Ninth Circuit judicial activism that many Volokh readers will like: Merrifield v. Lockyer. It's a decision by Judge O'Scannlain striking down a California pest control licensing regime, giving a victory to the Pacific Legal Foundation (and Timothy Sandefur, who argued the case).

  In 1995, California amended its licensing requirements for pest control companies. Before 1995, a license was required for all pest control. In 1995, the state eliminated the license requirement for those who do non-pesticide pest control of "bats, raccoons, skunks, and squirrels." At the same time, the state maintained the license requirement for those who do non-pesticide pest control of "mice, rats, or pigeons." In this decision, the Ninth Circuit in a 2-1 decision invalidated the statute on the ground that there was no rational basis for distinguishing pest control for "bats, raccoons, skunks, and squirrels" from pest control of "mice, rats, or pigeons."

  I realize that many of our libertarian readers will cheer the decision — it's nicely libertarian decision. Indeed, if I were a legislator, I would vote against a licensing requirement for all non-pesticide pest control. But as a matter of existing law — boring, plain, doctrinal, what-the-books-say existing law — Judge O'Scannlain's decision seems incorrect to me. The rational basis test is very easy to meet, and it seems readily met here.

  The key reason is that the control of mice, rats, and pigeons is closely associated with the use of pesticides. In light of this close connection, the state might rationally be concerned that people would try to avoid the state licensing requirement by claiming that they do not use pesticides when they actually do. Also, the use of pesticides to control these pests is sufficiently effective that homeowners might be tricked: If a homeowner hires a pest control company to take care of a mouse problem, they're going to expect the use of pesticides, and if they don't inquire they may not realize that they're not getting them. In my view, that makes it rational to have licensing requirement for one but not the other.

  Of course, these rationales may or may not be persuasive to particular readers. As I said, I personally wouldn't vote for the limitation on the exemption; I would have exempted all non-pesticide pest control. But the issue here is constitutional law, not my personal policy views, and it seems pretty clear to me that the arguments are strong enough to get over the very low threshold of rational basis scrutiny. (Hat tip: Howard)
Timothy Sandefur (mail) (www):
Prof. Kerr,

The problem with the rational basis you offer is that the law only requires a license if a person deals with pigeons, rats, and mice, but not any other kind of pest. If it were really the case that the state considers knowing about pesticides important even for those who don't use them, then why does the law allow any person to address, say, a bat or a squirrel or a skunk problem, without having a license? Such a person could walk into a structure dripping with pesticides applied by others--and not be licensed at all.

Of course, as to avoiding the law by pretending not to use pesticides, there's nothing in the law about that--there's no connection between that rationale and the fact that the law allows people to treat pigeons only with a license and to treat seagulls without a license. Obviously we would not be opposed at all to the state cracking down on people who break the law by using pesticides without a license. The question here is, can the state require people who don't use pesticides to have a license, and do so only when the animal in question is a pigeon--but to go ahead and operate without a license if the animal in question is a seagull. On this matter, even the state's expert witness testified in deposition that the law was, in his word, "irrational."

Again, the question here isn't about whether people who don't use pesticides should be licensed, or whether people who do use pesticides should be licensed. The question is, should people who don't use pesticides be required to get a license SOMETIMES, but not at OTHER times, depending on what kind of pest is being addressed? And the court correctly said no--the only evidence in the case indicates that this exception was created to protect established companies against fair competition, and that's not a legitimate state interest.
9.16.2008 7:11pm
J. Aldridge:
I have an idea: Instead of having legislatures to draft laws lets let federal circuit courts do it.
9.16.2008 7:13pm
Timothy Sandefur (mail) (www):
By the way, for those interested, I discuss this case in more detail in this law review article (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=794245) and, in more abbreviated form, this article for Regulation: http://www.cato.org/pubs/regulation/regv29n1/v29n1-6.pdf
9.16.2008 7:14pm
Brett Bellmore:

The rational basis test is very easy to meet, and it seems readily met here.


That's because the very name of the test is a lie: It's not "rational" basis, it's "rationalization" basis. In rationalization basis the courts don't require the basis to actually be rational, they merely require it to be expressed.
9.16.2008 7:17pm
Steve:
I am sympathetic to the argument that the real purpose for a licensing requirement is to protect established companies from competition, since that seems to be the purpose of many licensing requirements.

But where the original law was enacted 50 years previously to impose licensing requirements on everyone, and the amendment creating an exception for some, but not all covered companies came along much later, how can the amendment serve to prove that the original statute was enacted solely to protect established companies from competition? If anything, it's the amendment that ought to be struck down for lack of a rational basis, not the original statute.
9.16.2008 7:22pm
OrinKerr:
Tim,

You write, "as to avoiding the law by pretending not to use pesticides, there's nothing in the law about that--there's no connection between that rationale and the fact that the law allows people to treat pigeons only with a license and to treat seagulls without a license."

But of course there is. It seems unlikely to me that a pest control company that deals with seagull pests would secretly use pesticides against seagulls. Seagulls are nice; people would freak out at that. The rationale basis test doesn't require legislatures to be blind to the realities of the market. And while I appreciate that you don't oppose laws prohibiting fraud, the possibility of trying to address this problem through fraud laws is irrelevant from the basis of existing law. That's only a relevant argument if you're dealing with a higher level of scrutiny.

More broadly, it seems to me that your objections are really objections to the rational basis doctrine, not to the pest control regime. Indeed, I assume the ultimate goal of bringing the case is to get some lower court caselaw on your side destabilizing the rational basis test so you can someday get a split and get the Supreme Court to take the case and reject its existing doctrine. If I'm right about that goal -- and I should say, I'm not as familiar with the PLF as a I am with groups like IJ -- you need to get sympathetic judges to misapply the law to get the ball rolling. It seems to me that this is what happened here, and I'm just pointing it out.
9.16.2008 7:28pm
guy in the veal calf office (mail) (www):
....hold on, trying to work in a Sarah Palin angle......
9.16.2008 7:30pm
Oren:
Great post, great decision. Hopefully rational basis will start to mean more like what the 9CA has articulated here and less of the "list reasons until they stick test".
9.16.2008 7:31pm
Dilan Esper (mail) (www):
Professor Kerr is right on both his points. The law is constitutional under current law under the "one step backward at a time" doctrine.

I should add, though, as a constitutional matter, I would not mind seeing a more aggressive rational basis test. We've already seen it in sexual orientation cases, and we saw it in the 1970's pre-Craig v. Boren in sex discrimination cases. I think Cleburne v. Cleburne Living Center may have been a rational basis case as well. The fact is, there's nothing wrong with courts demanding some significant relationship between legislative means and ends.
9.16.2008 7:33pm
Malvolio:
Well, what wouldn't a rational basis?

What does it mean to be rational? To me, "rational" suggests "ratio" -- the cost of the law must be in proportion to the benefit of the law -- but that's just me.

What does it mean to be a basis? That the sponsors of the law included in its text (or its legislative history or somewhere) a "rational" (whatever that means) explain? Or that the lawyers defending the law in court could invent one? Or the court could?

This is why I favor strict scrutiny for every single law.
9.16.2008 7:37pm
Timothy Sandefur (mail) (www):
Prof. Kerr,

You write, "It seems unlikely to me that a pest control company that deals with seagull pests would secretly use pesticides against seagulls. Seagulls are nice; people would freak out at that." I don't understand the relevance of that--and by making such assumptions, you seem to be imposing your vision of what "the realities of the marketplace" are in the place of the law--just what you're complaining about under the (basically meaningless) term "judicial activism."

The question here is, is there any reason to require a license for pigeon work but not seagull work, or for rat work but not skunk work--or what have you? The state's own expert witness testified that there was not, and there is no evidence in the record of any reason for such a requirement. But the evidence did reveal that this distinction was drawn because pigeons, rats, and mice, are where the money is in the pest control business, and the companies that had licenses didn't want to face competition against the new, pesticide-free companies that were starting up in 1995. That's the evidence in the record, and the court's bound by it. Would you ask the court to invent its own justification for the law, one that flies in the face of common sense, and that is contrary to the undisputed evidence in the record? And when you do so, would you call yourself a defender of judicial deference? That sounds a lot more activist to me.

As to common sense, keep in mind that getting a license requires 2 years of education in pesticide-handling, and requires you to pass a 200 question examination that has not a single question on it about pigeons, and that is overwhelmingly devoted to pesticide usage!--something you would never need.

This is like requiring a carpenter to get an architect's license. Yes, some license requirement could very well be legitimate, if it were tailored to the activities the business undertakes. But here, a licensing law was clearly being perverted to protect politically powerful insiders against competition by small businesses that lack the political power to require the government to respect their fundamental constitutional right to earn a living.
9.16.2008 7:39pm
NickM (mail) (www):
Orin, it doesn't appear that the State of California raised the basis you proffer. Do you want to criticize a Court of Appeal for being insufficiently creative to come up with that basis on its own? Because that is what you are in effect doing.

Nick
9.16.2008 7:46pm
zippypinhead:
guy in the veal calf office wrote:
....hold on, trying to work in a Sarah Palin angle......
gitvco wins this thread!

[sorry, couldn't resist - even if working in Palin is probably less creative at this point than making poisoned pigeon jokes]
9.16.2008 7:52pm
ShelbyC:

Do you want to criticize a Court of Appeal for being insufficiently creative to come up with that basis on its own? Because that is what you are in effect doing.



Isn't that what courts are supposed to do when doing rational basis analysis?
9.16.2008 7:54pm
TruePath (mail) (www):
I have to admit I'm confused how any law can be struck down under the rational basis test. I mean I can't think of a single situation I couldn't cook up at least as compelling an explanation as this one. What would count as a correct application of the rational basis test?
9.16.2008 8:00pm
Malvolio:
a licensing law was clearly being perverted to protect politically powerful insiders against competition by small businesses
The desire for big campaign donation seems perfectly rational to me, et voilà.

Or am I missing something? Perhaps the interests of the politicians have to be dressed up as the interests of the polity. "The desire for private funding to support an efficient election campaign is a rational basis." Worked in McConnell v. FEC.
9.16.2008 8:12pm
John (mail):
The trouble with taking the position that "some guys would find it easy to cheat" as a "rational basis" is that it opens the door to nearly any discriminatory legislation. And it is nearly impossible to determine if the premise is true---much less, if true, how big a problem the "some" guys would be.

So using the "possibility of cheaters" rational basis test strikes me as very dangerous.
9.16.2008 9:11pm
Soronel Haetir (mail):
I've always been partial to lead poisoning for controlling larger pests, it's quite effective. I imagine that it would make some skunk hugger raging mad though.
9.16.2008 9:22pm
frankcross (mail):
Timothy Sandefur, I haven't read your piece (or event the case), but I don't think underinclusivity is any reason to fail the rational basis test. If it were, I suspect that every law ever passed would probably fail the test.
9.16.2008 10:25pm
Bill McGonigle (www):
I can't see how this is a good libertarian decision, in effect. Likely the conclusion will be that those exceptions are just too difficult and all will be required to plead for licenses. Net-more-government.
9.16.2008 10:45pm
brandon:
It is striking to me that those concerned with "constitutional law" rather than their own "policy views" never recognize that the rational basis test itself has no constitutional basis; it was simply invented from whole cloth (as Dr. Roger Pilon has mentioned before). "Judicial conservatives" today are nothing more than process conservatives and should not have the temerity to call themselves originalists. I challenge Professor Kerr to defend the rational basis test on originalist grounds.
9.16.2008 10:54pm
OrinKerr:
Tim,

Correct me if I'm wrong, but when a court engages in rational basis review, I believe the question is not why the legislature actually did act in that way. Rather, the question is whether a legislature could rationally act in that way. That is, you need to answer a hypothetical question about a hypothetical reason, not answer a historical question about what actually happened. You may think that is stupid, and indeed I gather from your comment that you think it is. But my point isn't whether existing Supreme Court doctrine is nice or sensible or leads to good laws. My point is just that I believe this to be existing Supreme Court doctrine, and I believe Judge O'Scannlain's opinion is inconsistent with that.

NickM,
Orin, it doesn't appear that the State of California raised the basis you proffer. Do you want to criticize a Court of Appeal for being insufficiently creative to come up with that basis on its own? Because that is what you are in effect doing.
It took me between 30 and 60 seconds to come up with these two rationales. If two federal court of appeals judges and their law clerks can't do it in 6 months of dealing with the case, then yes, I criticize them for it. I should add that my understanding is that a federal court's job in a rational basis cases is not just to scrutinize just the arguments as exactly made, but rather to actually answer the legal question before them correctly. That's my understanding, at least.
9.16.2008 11:04pm
Malvolio:
It is striking to me that those concerned with "constitutional law" rather than their own "policy views" never recognize that the rational basis test itself has no constitutional basis; it was simply invented from whole cloth
At the risk of sounding brusque, yeah, so?

How would you propose that the Court translate the short and absolute language of the Constitution into actually jurisprudence?

The Constitution says (more or less) "Congress shall make no law abridging freedom of speech." Then an executive department tries to charge an extortionist ("Give me money or I'll burn down your house.") with extortion. Well, it's not Congress, but it is abridging the extortionist's freedom of speech. What should the Court do?

What it in fact does is try to derive reasonable and consistent tests. Rational basis, community standards, separate and equal, all deliberate speed. Some of their tests work better than others, but what else could they do?
9.16.2008 11:05pm
Gilbert (mail):
Rational basis, like it or not, means something. Simply pointing out how infrequently it is a determinative factor in judicial decisions is terribly poor reasoning (this directed to the line of reasoning that goes 'rational basis can always be met, and therefore must be met here').

The problem with your examples is that they assume trickery and illegal conduct on the part of the regulated. In the absence of evidence, I would find it much more disturbing for a court to make such an assumption than not to.
9.16.2008 11:11pm
OrinKerr:
brandon writes:
It is striking to me that those concerned with "constitutional law" rather than their own "policy views" never recognize that the rational basis test itself has no constitutional basis; it was simply invented from whole cloth (as Dr. Roger Pilon has mentioned before). "Judicial conservatives" today are nothing more than process conservatives and should not have the temerity to call themselves originalists. I challenge Professor Kerr to defend the rational basis test on originalist grounds.
It is striking to me that someone would believe that I am making an originalist argument! Obviously I am making just a doctrinal argument, which you are free to reject on originalist grounds if you are not interested in whether Judge O'Scannlain is actually following existing law or not. I happen to be interested in whether lower court judges follow the law, which I hope is an okay concern for a law blog.
9.16.2008 11:16pm
OrinKerr:
Gilbert,

To be clear, the question in this post is not what legal rule you personally find disturbing, but rather what the legal rule is. I believe I have applied the existing law correctly.
9.16.2008 11:19pm
Mike& (mail):
It is striking to me that those concerned with "constitutional law" rather than their own "policy views" never recognize that the rational basis test itself has no constitutional basis

Oh yes it does. It's based on principles of separation of powers. The arguments in support of that view have been made elsewhere, so no need for me to repeat them.
9.16.2008 11:21pm
Gilbert (mail):
@Orin Kerr

Fine, I [assert that it would be an abuse of discretion for the court to] assume, in the absence of any evidence, that any given trickery or illegal actions are rationally foreseeable by the legislature.

The reason is, if the court can just take judicial notice that people break the law and use that as a basis for a legal decision, the only constraint on judicial power goes out the window -- that decisions are dictated by logic and evidence, not conjecture and personal sentiments. It is _rational_ basis, after all.
9.16.2008 11:25pm
Smokey:
Soronel Haetir:
I've always been partial to lead poisoning for controlling larger pests, it's quite effective. I imagine that it would make some skunk hugger raging mad though.
That's my solution, too. It's the best solution on many levels:

It keeps another layer of government bureaucracy from expanding, it requires people to take personal responsibility for their pests, and its what Sarah Palin would do.

[I worked Sarah Palin into the thread! Do I get a cookie?]
9.16.2008 11:38pm
Respondent:
I believe that the rational basis test is the appropriate originalist way to decide issues like these. The equal protection clause was enacted to prevent states from treating citizens differently because of a disfavor towards some of them. But any "rational" basis for allowing the law means that the law ipso facto doesn't discriminate on the basis of a sheer disfavoring of some people. Strict scrutiny is appropriate in race cases, since the context of the time should make it clear to all that the reconstructionist congress (and presumably the states who voluntarily ratified the amendment) decided that judgements that people should be treated differently on the basis of race were irrational per se, unless the most compelling reasons could be advanced to defend them. The fourteenth amendment, by banning irrational treatment, was thus seen as putting at end to state racial discrimination, just as the thirteenth amendment put an end to slavery.

As for "intermediate scrutiny" on the other hand, ...
9.16.2008 11:40pm
Timothy Sandefur (mail) (www):
frankcross writes, "I don't think underinclusivity is any reason to fail the rational basis test." That may be the case, but here we have a bizarre mixture of underinclusivity and overinclusivity. The licensing restriction is overinclusive in that it requires people who do business A to learn skills that are only appropriate to business B (or have a negligible degree of overlap). That kind of overinclusiveness MUST violate the rational basis test at some point, since we would all agree that it would be irrational to require a truck driver to go to medical school. Where do we draw the line? Well, in the Cornwell hairbraiding case, the answer was, 10% overlap is the least number required--that is, of the licensing examination requirements only 10% were relevant to hairbraiding. In this case, the number was 8%.

But at the same time, the law is underinclusive, in that it only requires a license if you're treating rats, mice, and pigeons, but not other kinds of pests--and there was no evidence in the record to show that these kinds of pests are, for some reason, more dangerous, or require any greater degree of training. Moreover, the licensing exam does not test a person's skill or knowledge of non-pesticide treatment methods. In other words, a person could be fully licensed and show up to install spikes on a building to keep pigeons away--and yet never have taken a minute's worth of education or training in how to deal with pigeons or how to install spikes.

So the requirement did test knowledge that was irrelevant and did not test knowledge that was relevant. Now, if there are any constitutional limitations at all on the legislature's power to impose licensing requirements--which I consider obvious, since the Constitution allegedly protects "liberty"--then there must be a role for courts to intervene when a licensing requirement has just nothing to do with ensuring that a person has the fitness and skill necessary for practicing a profession.

Prof. Kerr writes, "the question is whether a legislature could rationally act in that way." Alas, yes, the ratonal basis test (a political doctrine improperly grafted onto the Constitution to rationalize the Progressive movement's assaults on individual liberty) has been construed as requiring a court to invent its own rationale for the law, even where that rationale is silly, or was never expressed by the legislature, or never even offered by the state in litigation. This is one reason why the rational basis test needs overhauling. (See Clark Neily's great article "No Such Thing.")

But if there are any constitutional limits on the legislature at all, then there will be so-called "judicial activism," because there will be a need for courts to stop the legislature when it goes too far. And if "rational basis" means anything other than absolute deference--that is to say, if the legislature is bound by the Constitution at all--then there comes a point where the court must take a realistic look at the law and see if it has any realistic justification. Here, the undisputed evidence in the record showed that the law was enacted for the sole purpose of protectionism.

The other justifications for the law simply make no sense: if it's about training, why did the exam contain no questions relevant to what the plaintiffs did? If it's about educatting the public, why did the defense concede in discovery that there was no educational component to the testing requirements, and that education was not part of the occupational description? If it was about protecting the practitioners themselves from pesticides applied by others, why did it only apply if the practitioners were dealing with pigeons, but not when the same practitioners dealt with a bat or squirrel problem?

I agree that the rational basis test is quite deferential, but it must be something more than absolute deference, and the facts of this case were simply over the line.

The problem with the term "judicial activism" isn't just that it's a meaningless pejorative thrown around whenever (a) a person disagrees with the decision or (b) a person wants to appear to be an objective, disinterested academic who's above it all. The real problem is that it is the proper role of the courts to enforce the rule of law against the legislature. That, at least, was the Founders' understanding, as expressed in Federalist 78. Indeed, a written Constitution requires that courts do that, since the Constitution says that only those laws that are made "pursuant to" the Constitution are, in fact, the law of the land. A court that defers to the legislature to the utmost is essentially allowing the legislature to act at will. And if the legislature can act at will, then there is no point in having a Constitution--you would only need to open the legislature and hand over to it all of your life, liberty, and property to act as it wishes.

Thank God our Founders did not think that way. As Jefferson said, "An elective despotism was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."
9.16.2008 11:47pm
OrinKerr:
Tim writes:
Alas, yes, the ratonal basis test (a political doctrine improperly grafted onto the Constitution to rationalize the Progressive movement's assaults on individual liberty) has been construed as requiring a court to invent its own rationale for the law, even where that rationale is silly, or was never expressed by the legislature, or never even offered by the state in litigation. This is one reason why the rational basis test needs overhauling.

But if there are any constitutional limits on the legislature at all, then there will be so-called "judicial activism," because there will be a need for courts to stop the legislature when it goes too far. And if "rational basis" means anything other than absolute deference--that is to say, if the legislature is bound by the Constitution at all--then there comes a point where the court must take a realistic look at the law and see if it has any realistic justification.
Tim, these certainly are very interesting arguments to make to the Supreme Court. My point is just that it's above the Ninth Circuit's pay grade to change the law like that.
9.16.2008 11:54pm
OrinKerr:
Tim writes:
The problem with the term "judicial activism" isn't just that it's a meaningless pejorative thrown around whenever (a) a person disagrees with the decision or (b) a person wants to appear to be an objective, disinterested academic who's above it all. . . .
I don't get this. As I have made clear, I personally would have voted for the result as a legislator. Also, it is patently absurd to think that those who decry judicial activism "want to appear to be an objective, disinterested academic who's above it all." If I appear that way, then blame me for it personally: Don't tag others who decry activism with the pejorative label of disinterested academic.
9.17.2008 12:00am
CrazyTrain (mail):
This is why I favor strict scrutiny for every single law.

So do I -- I just prefer that legislators be the ones to conduct such scrutiny so if I disagree with their results, I can vote them out.
9.17.2008 12:04am
OrinKerr:
CrazyTrain wins the thread, IMHO.
9.17.2008 12:08am
frankcross (mail):
Timothy, you have the advantage of intimate knowledge of the facts, which I lack, so I can't dispute you there. Though I can't seen underinclusiveness as any sort of argument for you. The fact we choose to cure 50% of a problem is not a reason for the judiciary to compel that we cure only 0% of it.

And I basically agree with your take on judicial activism, though I don't understand the "disinterested academic" shot, it's pretty much just those who disagree with the decision. I hope you speak up against the diatribes of the right, which are so common.
9.17.2008 12:10am
Clark Neily (mail):
The rational basis test is not a genuine test, so it really doesn't make much sense to argue about whether it was correctly applied in any given case. And while I recognize that the Supreme Court has told us we're supposed to take the rational basis test seriously, that's simply not possible once you take a close enough look at it. Consider the following:

-To prevail in a rational basis case, the plaintiff must negate (or, to use Justice Thomas' unfortunate locution, "negative") every conceivable basis for the law. But it is doubtful whether any proposition about the material world can ever be falsified, and it is certainly impossible to negate an infinite set of propositions.

-Orin is correct that judges are permitted -- indeed, required -- to help the government win rational basis cases by dreaming up potential justifications for a challenged law whenever the government lawyers' creativity proves insufficient. But imagine judges were charged with helping the federal government win breach-of-contract or tort cases by dreaming up possible defenses that hadn't occurred to the DOJ attorneys litigating the case. That would be a glaring procedural due process violation because it would deprive the opposing litigant of her right to a neutral decisionmaker. I can't for the life of me think why litigants in civil rights cases should not enjoy the same right to a decisionmaker who is neutral and free from the appearance of bias.

-Judges in rational basis cases are required to disregard the true purposes for the challenged law no matter how clear those purposes might be. But courts routinely consider legislative motives in other constitutional cases -- e.g., voting rights, religion, racial discrimination -- involving values they actually care about. The decision not to do so in economic liberty and property rights cases is a matter of judicial will, not principle.

So who knows -- maybe Tim's moon was in Aquarius when he argued this case and that's why he won. That's no sillier than saying he did or didn't fail to "negative" every conceivable justication for the licensing law or that legislators "might have" been motivated by a purpose that plainly never occurred to them and that could not possibly have had anything to do with the enactment of the challenged restriction.
9.17.2008 12:27am
DavidBernstein (mail):
Very few laws fail the rational basis test. But it strikes me that if, as Tim says, the state's own expert acknowledged that a law is "irrational," that law should fail the rational basis test. It's one thing for a court to invent a rational basis when not provided with one. It's another if the state's witness acknowledges that the law is irrational, and the court concludes that the law must be a product of economic protectionism, pure and simple. Surely, the outcome isn't controlled by Williamson v. Lee Optical, given that in that case, to my knowledge, no state witness acknowledged that the law was irrational.
9.17.2008 12:30am
Skyler (mail) (www):
Rational basis is not supposed to mean any flimsy excuse for a basis. It has to be rational. Perhaps we're finally seeing a judge that wants to use the word rational in a rational way.

But this decision has nothing to do with libertarianism. The inevitable result will be that all will be required to be licensed without exceptions. The justices here didn't do anyone any favors.
9.17.2008 12:44am
anon:
Sadly, I must concur with Prof. Kerr. As far as I can tell the rational basis test is grounded on the principle that all regulation is permissible unless it falls under some higher level of scrutiny. As Justice Douglas said, "[w]e emphasize again what Chief Justice Waite said in Munn v. Illinois, 94 U.S. 113, 134 , 'For protection against abuses by legislatures the people must resort to the polls, not to the courts.'"

My chief complaint is not with the rational basis test, it is that the Supreme Court has so many other tests.
9.17.2008 1:04am
Stephan Kinsella (mail) (www):
Of course, Kerr et al. are right, here. The decision was not "libertarian"; seeking justice from the "judicial" department of the inherently-unjust state is futile; and twisting statist doctrines to achieve "libertarian" results can't be expected to lead to liberty.
9.17.2008 1:22am
J.P. Thompson (mail):
Prof. Kerr,

You chide Mr. Sandefur for proposing what you consider to be "interesting arguments" better made before the Supreme Court, but clearly the Supreme Court has not advanced the absolute deference standard you attribute to it. The Court has invalidated numerous laws under rational basis (recently Lawrence). Other cases cited today in the Merrifield opinion offer additional examples.

While the Court has used the "any conceivable basis" language when upholding government regulations, it does not when invalidating them. Perhaps this is just another reason why the rational basis test is flawed, but it is incorrect to say that an advocate advancing a theory that "the rational basis test is more than absolute deference," is making a novel argument. While you say you "have applied the existing law correctly," you are simply applying the version of the doctrine that upholds regulation.

More importantly (and better stated by Messrs. Sandefur and Neily), "whether a legislature could rationally act in that way" cannot be the test. What fails this test? A law that prohibits redheads from going outdoors? (Well, no, because the legislature could rationally think that redheads have a higher risk of skin cancer, so the law could rationally be related to the public health). Or Mr. Sandefur's "truck driver/medical school" example? (Well, no, because a legislature could rationally think that truck drivers, being on the road frequently, encounter numerous accidents, and should be prepared for life saving procedures -- again for the public health).

So, yes, the "any conceivable basis test" has been articulated by the Supreme Court, but it is not novel to suggest that test is unworkable. Moreover, it is, in fact, unworkable, and Merrifield was an egregious example that the 9th Circuit properly struck down.
9.17.2008 1:31am
Dilan Esper (mail) (www):
JF:

Doctrinally, "economic" classifications get the lowest form of rational basis scrutiny, which is basically no scrutiny at all. Cases like Lawrence are hard to explain, but the best way of doing it is probably to say that the Supreme Court doesn't want to create any more categories of heightened scrutiny but does think there are some other disfavored groups who need protection, so they are willing to stretch the rational basis test into a somewhat higher level of scrutiny to protect them. This is within the spirit of the Carolene Products footnote, which originally set out the distinction between classifications that are reviewed for rational basis and those reviewable under heightened scrutiny.

The Supreme Court has repeatedly rejected attempts to apply this sort of heightened rationality analysis to economic classifications. Personally, I wish they would. But they haven't yet.

The Pacific Legal Foundation, Tim Sandefur's organization, is committed (along with the Institute for Justice) to finding sympathetic cases, like black hair braiders subject to cosmetology school requirements, for persuading the courts to up the level of scrutiny for economic classifications. Even though I don't share the PLF's or IJ's politics, I think they are doing great work in this regard and, as noted above, would welcome some movement from the courts in this regard.

But you have to understand that not only has it not happened yet, but they are bucking up against a 60 year trend and the ghost of Lochner, which so many generations of lawyers and judges have been taught demonstrates the excesses that can occur when economic classifications are reviewed under heightened scrutiny.

Trust me, Professor Kerr is right on the law. While it is true that every economic classification rational basis case CAN be distinguished, it is also true that the Supreme Court has not struck down an economic classification on rational basis grounds since the early years of the New Deal, and it has had plenty of opportunities including some rediculously irrational regulations.
9.17.2008 1:39am
CrazyTrain (mail):
I don't think anyone is "chiding" Mr. Sandefur. I think there really is just a genuine disagreement here.

Moreover, I think Mr. Sandefur must have done a tremendous job of lawyering here. This panel, save O'Scanlain, was not the panel you would expect to issue this decision. Furthermore, the dissent here was remarkable for how brief it was -- you could tell that Judge Hawkins thought the opinion was the "just" result, but that it wasn't "right" under existing law. Given the state of the law, this is really a huge victory. (Still wouldn't be surprised to see it get a 9-0 per curiam reversal without argument however -- something the Supremes love to do the 9th Circuit and they could couple it with a 9-0 no-argument habeas reversal of the 9th so they look "even-handed.")
9.17.2008 1:44am
OrinKerr:
JP,

1) Are you sure Lawrence was a rational basis case? The Court actually never stated the standard of review.

2) True, it is not novel to suggest that existing law is unworkable. For that matter, it is not novel for the Ninth Circuit to decide a case incorrectly. My point is not about novelty, but about law.

CrazyTrain,

I'm guessing the Ninth Circuit judges will grab this one en banc before the Justices have the chance. Cf. DC Circuit's Abigail Alliance decision, where a 2-1 panel decision triggered an 8-2 en banc decision overturning it.
9.17.2008 1:55am
CrazyTrain (mail):
The 9th has changed a bit since I was clerking there, but I would bet against en banc review here. The newer conservatives (the Bush appointees) are not going to want to get in a fight with O'Scanlain over this. And the liberals are just not going to really care -- see Hawkins' dissent, which is notable for not really doing anything to O'Scanlain's opinion other than to say in a paragraph that he disagreed. Hawkins is not the type who wouldn't want to rip into O'Scanlain (they are on opposite sides of the Court), but the tenor of his dissent just gives off the vibe that he doesn't care much.
9.17.2008 2:18am
OrinKerr:
Interesting point, CrazyTrain. Thanks for the insight.
9.17.2008 2:27am
J.P. Thompson (mail):
Cleburne, Plyler and Romer if don't like Lawrence.
9.17.2008 2:30am
J.P. Thompson (mail):
"Novel" was a poor choice of words, but you do argue that his argument is properly made before the Supreme Court. My point: there is sufficient precedent (SC included) to make Mr. Sandefur's argument before the 9th Circuit.
9.17.2008 2:35am
SKardner (mail):
Cf. DC Circuit's Abigail Alliance decision, where a 2-1 panel decision triggered an 8-2 en banc decision overturning it.

Abigail Alliance was far more radical than this. There, the natural law argument was that the entire regulatory framework for drugs was unconstitutional because it excluded a necessity defense for use of drugs at an intermediary stage of FDA approval. Here, the argument is that the rational-basis test as applied to this specific code is unconstitutional on the facts of this case. The difference is the appeal to natural law and the narrowness of scope.

Furthermore, the dissent here was remarkable for how brief it was -- you could tell that Judge Hawkins thought the opinion was the "just" result, but that it wasn't "right" under existing law. Given the state of the law, this is really a huge victory.

One could argue that the lack of arguments on the dissenting side bodes well. Almost no legal philosopher would contend that valid law consists of anarchy (I decide the law for myself) or tyranny (e.g., mandating impossible compliance). This case seems to feature a tyrannical, arbitrary law.

But it strikes me that if, as Tim says, the state's own expert acknowledged that a law is "irrational," that law should fail the rational basis test. It's one thing for a court to invent a rational basis when not provided with one. It's another if the state's witness acknowledges that the law is irrational, and the court concludes that the law must be a product of economic protectionism, pure and simple. Surely, the outcome isn't controlled by Williamson v. Lee Optical, given that in that case, to my knowledge, no state witness acknowledged that the law was irrational.

I agree that the distinction with Williamson falls in PLF's favor. There is a concession here that one would think vitiates the State's case. One can preserve Williamson and the rational-basis test by noting that in this case, the State's own expert witness conceded in open court that the given law was irrational.

courts routinely consider legislative motives in other constitutional cases -- e.g., voting rights, religion, racial discrimination -- involving values they actually care about. The decision not to do so in economic liberty and property rights cases is a matter of judicial will, not principle.

In the case of interracial marriage, the Court stepped in when the state of Virginia articulated "the preservation of White supremacy" as its legitimate interest. Here, claiming that imposing a regulatory burden that the State believes is irrational may be equivalent. It would be like a pornographer defending his movie by declaring in open court that he intended to make obscene work that had no literary, artistic, or scientific merit whatsoever and that appealed to the prurient interest only.

For that matter, it is not novel for the Ninth Circuit to decide a case incorrectly. My point is not about novelty, but about law.

Not to initiate a Dworkinian semantic sting about what "the law" is, but one man's law is another man's frivolous argument. Oliver Wendell Holmes -- and other empiricists -- would argue that lawyers are called upon to make predictions, and legal realists would certainly argue that realistically possible outcomes that judges select count as non-frivolous arguments if there is good faith support for them. Mr. Sandefur worked within existing legal doctrine, established a favorable record that the State's witness could not dispute, and the opposing counsel was absolutely terrible at oral argument. Absolutely terrible. I would recommend everyone listen to the oral argument to get a sense of how difficult it was for California to defend its irrational distinction. We can debate the legal doctrine and the proper criteria of its applicability to fringe cases, but there is no doubt that this is a strong case against the State of California.
9.17.2008 3:38am
Mike& (mail):
So do I -- I just prefer that legislators be the ones to conduct such scrutiny so if I disagree with their results, I can vote them out.

So if a bunch of legislators vote that black people should not be able to marry white people, you'd presumably be okay with this?

I assume not. Well, why not?

Why do "judicial conservatives" support judicial review of some issues, but not others?

I know the Supreme Court's existing framework. That's not what I'm looking for.

Why, as a philosophical matter, is it appropriate to take some issues (but not others) out of the hand of legislators?

Or am I wrong in assuming that you would support judicial review of some issues.
9.17.2008 5:05am
Nick P.:
I'd have thought that the reverse of the State's position would be more rational. Skunks, bats, and raccoons are major vectors for rabies, so closer regulation and licensing could be justified to keep both the pest controllers and their clients safe. Pigeons don't carry rabies, and rats and mice are not major vectors.
9.17.2008 9:58am
SailorDave (www):
the bottom line is that if you have a skunk or bat or raccoon running around in your house, you want a lot of people who can come _fast_ to get it the heck out, and you don't want to wait for it to eat pesticide laced bait. skunks and raccoons are much less likely than mice and rats to be living in your basement for months.

so there is a good economic rational basis for the law.
9.17.2008 10:15am
anonn:
(sarcasm alert) Its good that Kinsella joined in to remind us that court decisions that limit government power are in reality "statist." Thats why Dred Scott was the highpoint of liberterianism- sure, slavery was bad, but courts that prevent people from owning slaves is worse.
9.17.2008 10:32am
Stephan Kinsella (mail) (www):
anonn: "(sarcasm alert) Its good that Kinsella joined in to remind us that court decisions that limit government power are in reality "statist." Thats why Dred Scott was the highpoint of liberterianism- sure, slavery was bad, but courts that prevent people from owning slaves is worse."

"anonn" engages in the tired and bankrupt tactic of accusing any libertarian who distrusts the state and centralism (that is, any libertarian who is a libertarian) of ... being in favor of chattel slavery. Oh, that one stings, yow! Silly little guys.
9.17.2008 10:52am
anonn:
First off, I didn't engage in any "tired and bankrupt tactic." I am simply pointing out that your position on the power of courts is misguided and leads to an erosion of liberty. As long as there is government, and that government holds power, even "any libertarian who is a libertarian" should favor mechanisms designed to restrain government power such as the courts. Yes, perhaps in your version of a perfect world there would be no government and therefore no courts of law. However, to look at every situation and say "well, this isn't how things work in my utopian vision, so its wrong" is not very productive and it accomplishes nothing.
9.17.2008 11:40am
TruePath (mail) (www):
SKardner:

As per the discussion above what Virginia said was the basis of the laws against interracial marriage should be irrelevant. Orin's argument is that what matters is whether some rational justification for the law could be conceived.

Well here is a rational basis for banning interracial marriage: People who marry others outside their race are more likely to face racial violence and discrimination. In fact allowing interracial marriage might increase the murder rate. It's a legitimate government interest to avoid the murder and violence.

Now maybe these cases were decided with a higher level of scrutiny (probably). But my point is simply that I can't imagine anything that fails a rational basis test on the interpretation Orin offers.
9.21.2008 2:06pm
Stephan Kinsella (mail) (www):
Anonn: "First off, I didn't engage in any "tired and bankrupt tactic." I am simply pointing out that your position on the power of courts is misguided and leads to an erosion of liberty. As long as there is government, and that government holds power, even "any libertarian who is a libertarian" should favor mechanisms designed to restrain government power such as the courts. Yes, perhaps in your version of a perfect world there would be no government and therefore no courts of law. However, to look at every situation and say "well, this isn't how things work in my utopian vision, so its wrong" is not very productive and it accomplishes nothing."

But Anonn, I DO agree with and favor any incremental advancement of liberty--so long as it is unambiguous; and "mechanisms designed to restrain government power"--such as, yes, horizontally divided power (independent courts, legislature, and executive), vertically divided power (federalism, decentralism), enumerated and limited powers (10th amendment), freedom of speech, press, religion; and so on.

None of this gainsays my earlier, fairly narrow comment: "Of course, Kerr et al. are right, here. The decision was not "libertarian"; seeking justice from the "judicial" department of the inherently-unjust state is futile; and twisting statist doctrines to achieve "libertarian" results can't be expected to lead to liberty."

So let's see: Kerr was right; the decision was legally incorrect and is likely to be overturned.

Seeking justice from the criminal gang known as the state is indeed futile.

Twisting statist doctrines in a vain hope to persuade federal judges to magically become libertarian is unlikely to lead to liberty.

None of these sentiments is unlibertarian. None of them even blames people for using whatever resources or means they have available to try to vindicate their rights. Nonetheless they remain true.

As libertarian attorney J.H. Huerbert notes, in a review of a recent "activist libertarian" book:

It’s nothing short of bizarre to think that courts would start protecting liberty because of brilliant libertarian legal arguments. To believe this, one would have to take the naive view — which, incidentally, animates much of the Cato Institute’s work — that government officials are really reasonable, serious people who are just waiting to have the right ideas put in front of them. But how silly is it to think you can make the government want liberty before many or most of the people want it?

Granted, all the federal judges I’ve known have been genuinely nice people on a personal level — so perhaps our D.C.-based lawyers’ views have been skewed by exchanging pleasantries at a few too many beltway cocktail parties.

They may be hopelessly deluded, but the rest of us should keep in mind that the important work to be done is in the realm of education, not the halls of government. When people understand and want liberty’s benefits, they’ll cast off their government entirely, or at least elect representatives who will respect their rights. When that happens, no bad Supreme Court precedent will stand in their way.

Until then, “The Dirty Dozen” offers a mostly decent education on the harm the Supreme Court can do — but shouldn’t lead us into thinking the Court could somehow become an equivalent force for good.
9.22.2008 6:11pm