Amicus Curiae Brief — Ndioba Niang, et al., Petitioners v. Brittany Tomblinson, et al.

No. 17-1428

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------NDIOBA NIANG and TAMEKA STIGERS,

Petitioners,

v.

BRITTANY TOMBLINSON, in her Official

Capacity as Executive Director of the Missouri

Board of Cosmetology and Barber Examiners, et al.,

Respondents.

-----------------------------------------------------------------On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

-----------------------------------------------------------------BRIEF AMICUS CURIAE OF THE GOLDWATER

INSTITUTE IN SUPPORT OF PETITIONERS

-----------------------------------------------------------------TIMOTHY SANDEFUR

Counsel of Record

SCHARF–NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, Arizona 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

This Court has said that rational basis is not

“toothless,” Schweiker v. Wilson, 450 U.S. 221, 234

(1981), and that it requires a genuine, if loose, fit between legislative purposes and means. Romer v. Evans,

517 U.S. 620, 632–33 (1996). The Court below, however,

held that a judge may manufacture her own, hypothetical justification to uphold a statute, even where the

government has not offered that justification and there

is no evidence to support it. The question presented

here is whether courts can base rulings in rationalbasis cases on such entirely imaginary states of

affairs. In short,

Can courts simply make things up?

This is not meant disrespectfully. Precedents

conflict on whether rational basis is a “rebuttable”

“presumption of fact,” Borden’s Farm Prods., Co. v.

Baldwin, 293 U.S. 194, 209 (1934) (emphasis added)—

or whether judges may manufacture their own

purely speculative, evidence-free rationalizations for

laws whose constitutionality is challenged. See, e.g.,

Williamson v. Lee Optical of Okla., 348 U.S. 483,

487 (1955). Courts are also in conflict over whether

rational-basis lawsuits can be dismissed under Rule

12(b)(6) under such post hoc rationalizations. Compare

Hettinga v. United States, 677 F.3d 471, 482 (D.C. Cir.

2012), cert. denied, 568 U.S. 1088 (2013), with Carter v.

Arkansas, 392 F.3d 965, 968 (8th Cir. 2004).

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Table of Contents .................................................

ii

Table of Authorities .............................................

iii

Identity and Interest of Amicus Curiae ..............

1

Introduction and Summary of Reasons for

Granting the Petition ......................................

2

Argument .............................................................

5

I.

II.

The Decision Below Exacerbates a LongStanding Conflict Between All Levels of

Federal Courts Over the Limits of the Rational Basis Test ........................................

5

A. Substantial Confusion Abounds Over

the Meaning of Rational Basis ............

5

B. The Confusion Over Rational Basis is

So Severe, Courts Now Frequently Dismiss Rational-Basis Lawsuits without

Even Allowing Plaintiffs to Introduce

Evidence ...............................................

9

This Court’s Own Decisions are In Disarray on This Question ................................. 13

Conclusion............................................................ 19

iii

TABLE OF AUTHORITIES

Page

CASES

ABD Liberty, Inc. v. State, Dept. of Envtl. Prot.,

No. SOM-L-505-05, 2005 WL 2095735 (N.J.

Super. Ct. 2005) .......................................................13

Arceneaux v. Treen, 671 F.2d 128 (5th Cir. 1982) .........5

Bench Billboard Co. v. City of Cincinnati, No.

1:07cv589, 2008 WL 2220625 (S.D. Ohio May

28, 2008) ..................................................................11

Boice v. Aune, CV2011-021811 (Maricopa Cnty.

Super. Ct., filed Apr. 30, 2012) ..................................1

Borden’s Farm Prods., Co. v. Baldwin, 293 U.S.

194 (1934) ............................................... i, 3, 7, 13, 14

Bower v. Village of Mount Sterling, 44 Fed. Appx.

670 (6th Cir. 2002) ...................................................12

Brigham v. State, 889 A.2d 715 (Vt. 2005) .................13

Bruner v. Zawacki, 997 F. Supp. 2d 691 (E.D. Ky.

2014) ..........................................................................9

Carter v. Arkansas, 392 F.3d 965 (8th Cir. 2004) ....i, 12

City of Cleburne v. Cleburne Living Ctr., 473 U.S.

432 (1985) ............................................................ 6, 16

City of St. Paul v. Chicago, St. Paul, Minneapolis

& Omaha Ry. Co., 413 F.2d 762 (8th Cir. 1969) ...... 12

Coleman v. City of Mesa, 284 P.3d 863 (Ariz.

2012) ..........................................................................1

Colon Health Ctrs. of Am., LLC v. Hazel, 733 F.3d

535 (4th Cir. 2013) ...................................................12

iv

TABLE OF AUTHORITIES – Continued

Page

Cornwell v. California Bd. of Barbering & Cosmetology, 962 F. Supp. 1260 (S.D. Cal. 1997) .........11

Dawkins v. Richmond Cnty. Sch., No.

1:12CV414, 2012 WL 1580455 (M.D.N.C. May

4, 2012) ....................................................................11

Dias v. City & Cnty. of Denver, 567 F.3d 1169

(10th Cir. 2009).................................................. 10, 11

Dragovich v. U.S. Dep’t of the Treasury, 764

F. Supp. 2d 1178 (N.D. Cal. 2011) ...........................11

Eisenstadt v. Baird, 405 U.S. 438 (1972) ............ 6, 7, 15

F.C.C. v. Beach Commc’ns, Inc., 508 U.S. 307

(1993) ............................................................... 3, 4, 15

Flying J Inc. v. City of New Haven, 549 F.3d 538

(7th Cir. 2008)..........................................................11

Giarratano v. Johnson, 521 F.3d 298 (4th Cir.

2008) ........................................................................12

Granville v. Minneapolis Pub. Sch. Dist. No. 1,

668 N.W.2d 227 (Minn. Ct. App. 2003) ...................13

Heller v. Doe, 509 U.S. 312 (1993)...............................16

Hettinga v. United States, 677 F.3d 471 (D.C. Cir.

2012), cert. denied, 568 U.S. 1088 (2013)..... i, 4, 5, 9, 12

Immaculate Heart Cent. Sch. v. N.Y. State Pub.

High Sch. Athletic Ass’n, 797 F. Supp. 2d 204

(N.D.N.Y. 2011) ........................................................11

Jones v. Temmer, 829 F. Supp. 1226 (D. Colo.

1993), vacated as moot, 57 F.3d 921 (10th Cir.

1995) .................................................................... 9, 10

v

TABLE OF AUTHORITIES – Continued

Page

Keenon v. Conlisk, 507 F.2d 1259 (7th Cir. 1974).......11

Kelo v. New London, Conn., 545 U.S. 469 (2005) .......16

Killeen v. Crosson, 638 N.Y.S.2d 531 (N.Y. App.

Div. 1996) .................................................................13

Lazy Y Ranch, Ltd. v. Wiggins, No. CV06-340-SMHW, 2007 WL 1381805 (D. Idaho Mar. 13,

2007) ........................................................................11

Meadows v. Odom, 360 F. Supp. 2d 811 (M.D. La.

2005), vacated as moot, 198 Fed. Appx. 348

(5th Cir. 2006)........................................................ 7, 8

Midkiff v. Adams Cnty. Reg’l Water Dist., 409

F.3d 758 (6th Cir. 2005) ...........................................12

Milnot Co. v. Richardson, 350 F. Supp. 221 (N.D.

Ill. 1972)...................................................................15

Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405

(1935) .......................................................................14

Nebbia v. People of N.Y., 291 U.S. 502 (1934) .............13

Nordlinger v. Hahn, 505 U.S. 1 (1992) .......................10

Patel v. Texas Dep’t of Licensing & Regulation,

469 S.W.3d 69 (Tex. 2015) .........................................5

Phan v. Virginia, 806 F.2d 516 (4th Cir. 1986) ...........12

Polk Co. v. Glover, 305 U.S. 5 (1938) ...........................14

Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991) .........11

Romer v. Evans, 517 U.S. 620 (1996) ............... i, 4, 6, 16

Schlesinger v. Ballard, 419 U.S. 498 (1975) ...............15

vi

TABLE OF AUTHORITIES – Continued

Page

Schweiker v. Wilson, 450 U.S. 221 (1981) ..................... i

Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002)....... 11

Truax v. Corrigan, 257 U.S. 312 (1921) ......................17

United States Dep’t of Agric. v. Moreno, 413 U.S.

528 (1973) ............................................................ 6, 15

United States v. Carolene Prods. Co., 304 U.S.

144 (1938) ................................................................14

United States v. Sahhar, 917 F.2d 1197 (9th Cir.

1990) ..........................................................................5

Vong v. Aune, 328 P.3d 1057 (Ariz. App. 2014) .............1

Williamson v. Lee Optical of Okla., 348 U.S. 483

(1955) ....................................................................i, 15

Women’s Surgical Center, LLC v. Berry, 806

S.E.2d 606 (Ga. 2017) ................................................1

Wroblewski v. City of Washburn, 965 F.2d 452

(7th Cir. 1992).................................................... 10, 11

Zobel v. Williams, 457 U.S. 55 (1982) ..................... 6, 15

OTHER AUTHORITIES

Christina & Timothy Sandefur, The Property

Ownership Fairness Act: Protecting Private

Property Rights (Goldwater Institute 2016) ............2

Clark Neily, Litigation Without Adjudication:

Why the Modern Rational Basis Test is Unconstitutional, 14 GEO. J.L. & PUB. POL’Y 537

(2016) .........................................................................6

vii

TABLE OF AUTHORITIES – Continued

Page

David M. Burke, The “Presumption of Constitutionality” Doctrine and the Rehnquist Court: A

Lethal Combination for Individual Liberty, 18

HARV. J.L. & PUB. POL’Y 73 (1994) ............................6

Donald Marritz, Making Equality Matter

(Again): The Prohibition Against Special Laws

in the Pennsylvania Constitution, 3 WIDENER

J. PUB. L. 161 (1993) ..................................................6

Edward McGlynn Gaffney, Jr., Curious Chiasma: Rising and Falling Protection of Religious Freedom and Gender Equality, 4 U. PA.

J. CONST. L. 394 (2002) ..............................................6

Gideon Kanner, “[Un]equal Justice Under Law”:

The Invidiously Disparate Treatment of American Property Owners in Taking Cases, 40 LOY.

L.A. L. REV. 1065 (2007) .........................................18

Mark Flatten, Protection Racket: Occupational

Licensing Laws and the Right to Earn A Living (Goldwater Institute 2016) ............................. 2, 8

RICHARD A. EPSTEIN, TAKINGS 109 (1983) .....................6

Timothy Sandefur, Rational Basis and the

12(b)(6) Motion: An Unnecessary “Perplexity,”

25 GEO. MASON U. CIV. RTS. L.J. 43 (2014) ...............2

RULES

Fed. R. Civ. P. 12(b)(6) ................................ i, 4, 9, 10, 11

1

IDENTITY AND INTEREST

OF AMICUS CURIAE1

The Goldwater Institute (“GI”) was established in

1988 as a nonpartisan public policy and research foundation dedicated to advancing the principles of limited

government, economic freedom, and individual responsibility through litigation, research, policy briefings

and advocacy. Through its Scharf–Norton Center for

Constitutional Litigation, GI litigates and files amicus

briefs when its or its clients’ objectives are directly implicated.

GI’s litigation often involves matters that are

subject to federal rational-basis review, particularly

cases involving occupational licensing laws or restrictions on private property. See, e.g., Women’s Surgical Center, LLC v. Berry, 806 S.E.2d 606 (Ga. 2017);

Vong v. Aune, 328 P.3d 1057 (Ariz. App. 2014); Coleman

v. City of Mesa, 284 P.3d 863 (Ariz. 2012); Boice v. Aune,

CV2011-021811 (Maricopa Cnty. Super. Ct., filed Apr.

30, 2012). GI also pursues litigation in state courts, under state versions of rational basis—which typically

echo or rely on federal standards. See, e.g., Vong, 328

P.3d 1057; Coleman 284 P.3d 863. GI scholars have also

published important scholarship on the history, theory,

1

Pursuant to Supreme Court Rule 37(6), Amicus Curiae affirms that no counsel for any party authored this brief in whole

or in part and no person or entity, other than amicus, their members, or counsel, made any monetary contribution for its preparation or submission. The parties’ counsel of record received timely

notice of the intent to file the brief, and all parties have consented

to the filing of this brief.

2

and real-life consequences of the rational basis test.

See, e.g., Mark Flatten, Protection Racket: Occupational Licensing Laws and the Right to Earn A Living

(Goldwater Institute 2016)2; Timothy Sandefur, Rational Basis and the 12(b)(6) Motion: An Unnecessary

“Perplexity,” 25 GEO. MASON U. CIV. RTS. L.J. 43 (2014);

Christina & Timothy Sandefur, The Property Ownership Fairness Act: Protecting Private Property Rights

(Goldwater Institute 2016).3

Amicus believes its litigation experience and policy expertise will aid this Court in consideration of the

petition.

------------------------------------------------------------------

INTRODUCTION AND SUMMARY OF

REASONS FOR GRANTING THE PETITION

There are few questions of constitutional law more

pressing than this. Most constitutional rights—all except the few classified as “fundamental”—are subject

to rational-basis review. While it may be the lowest

level of constitutional security, it is, nevertheless, a

genuine one if it imposes some actual limit on the government. Yet the legal theory adopted by the Eighth

Circuit removes any legal significance from the rational basis test and transforms it into a logically impenetrable shield against judicial review. It allows a

court to manufacture a theory in the middle of trial,

and to decide the case on that theory sua sponte, and

2

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goo.gl/cECEso

3

not based on the evidence before it (if there even is

any). Such an approach contradicts this Court’s precedent, conflicts with decisions of other circuits, leads to

contradictory and illogical results, and deprives litigants of due process of law. Indeed, it leads to the conclusion—reached by some courts already—that a

rational-basis case can be dismissed at the pleading

stage, because the plaintiff could never as a logical

matter, meet the applicable burden of proof.

This doctrinal disorder arises from a single proposition: that courts in rational-basis cases can concoct

their own justifications for challenged laws, and uphold those laws against constitutional challenge if they

can imagine the possibility that under some circumstances other than those that actually exist, the challenged law could have had a constitutionally adequate

justification. See F.C.C. v. Beach Commc’ns, Inc., 508

U.S. 307, 323 n.3 (1993) (Stevens, J., concurring) (“it is

difficult to imagine a legislative classification that

could not be supported by a ‘reasonably conceivable

state of facts.’ ”).

This Court has cautioned against that approach,

holding that rational basis is “not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such

an immunity achieved by treating any fanciful conjecture as enough to repel attack.” Borden’s Farm Prods.,

293 U.S. at 209 (emphasis added). Nevertheless, that is

precisely what the court below did, and what other

courts have done.

4

In part, the confusion arises from this Court’s contradictory explanations of rational basis. In Beach

Commc’ns, 508 U.S. at 315, it said that “whether the

conceived reason for the challenged [law] actually motivated the legislature,” is “entirely irrelevant,” and

that actual evidence has “no significance in rationalbasis analysis.” But in cases such as Romer, 517 U.S.

620, it has moderated its approach, and said that

judges should not manufacture their own justifications

for challenged laws in rational-basis cases. In short,

this Court’s precedents on the question are in disarray.

The contradictory and confusing theories about

when purely imaginary notions may be invoked in

rational-basis cases have even led some courts to hold

that such cases should be dismissed at the 12(b)(6)

stage if the government defendant merely asserts that

there is a rational basis for the challenged law—before

any party has engaged in discovery, and even where

there is no evidence at all in the record. See, e.g., Hettinga, 677 F.3d at 482. Yet that cannot be the rule—

because rational-basis cases do survive motions to dismiss—and plaintiffs do win them.

Given the bedrock importance of this issue, this

Court should grant the petition to address whether, in

rational-basis cases, courts are bound to refer to the

evidence, or whether they can manufacture wholly imaginary rationalizations for challenged laws.

------------------------------------------------------------------

5

ARGUMENT

I.

The Decision Below Exacerbates a LongStanding Conflict Between All Levels of

Federal Courts Over the Limits of the

Rational Basis Test.

A. Substantial Confusion Abounds Over

the Meaning of Rational Basis.

The rational basis test has a bad name—and for

good reason. Judges have called it “a judicial rubberstamp,” United States v. Sahhar, 917 F.2d 1197, 1201

n.5 (9th Cir. 1990), and “a misnomer, wrapped in an

anomaly, inside a contradiction . . . less objective reason than subjective rationalization,” Patel v. Texas

Dep’t of Licensing & Regulation, 469 S.W.3d 69, 98

(Tex. 2015) (Willett, J., concurring). They have said

that it “can hardly be termed scrutiny at all,” and that

it “invites us to cup our hands over our eyes and then

imagine if there could be anything right with the statute,” Arceneaux v. Treen, 671 F.2d 128, 136 n.3 (5th Cir.

1982) (Goldberg, J., concurring). And they have condemned it for having “[t]he practical effect of . . . [eliminating] any check on the group interests that all too

often control the democratic process.” Hettinga, 677

F.3d at 482 (Brown, J., concurring).4

4

Judge Brown’s criticism of the rational basis test was joined

by Judge Sentelle. Judge Griffith declined to join but stated that

he was “by no means unsympathetic to their criticism.” Id. at 483

(Griffith, J., concurring).

6

Scholars have called rational basis a “charade,”

Clark Neily, Litigation Without Adjudication: Why the

Modern Rational Basis Test is Unconstitutional, 14

GEO. J.L. & PUB. POL’Y 537, 546 (2016), a mere “label,”

RICHARD A. EPSTEIN, TAKINGS 109 (1983), and “something of a joke,” Edward McGlynn Gaffney, Jr., Curious

Chiasma: Rising and Falling Protection of Religious

Freedom and Gender Equality, 4 U. PA. J. CONST. L.

394, 404 (2002). They have noted that it is “wholly ineffective at curbing legislative excesses.” David M.

Burke, The “Presumption of Constitutionality” Doctrine and the Rehnquist Court: A Lethal Combination

for Individual Liberty, 18 HARV. J.L. & PUB. POL’Y 73,

78 (1994).

The leading cause of these criticisms is that the

rational basis test is applied inconsistently. Sometimes, courts employ what can be called “true rational

basis” analysis, because they involve a genuine effort

to determine whether the law rationally advances the

legislature’s legitimate interest. See Donald Marritz,

Making Equality Matter (Again): The Prohibition

Against Special Laws in the Pennsylvania Constitution, 3 WIDENER J. PUB. L. 161, 176 (1993) (defining

“true rational basis”). Examples would include Romer,

517 U.S. 620; City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985); Eisenstadt v. Baird, 405 U.S. 438

(1972); United States Dep’t of Agric. v. Moreno, 413 U.S.

528 (1973); Zobel v. Williams, 457 U.S. 55 (1982), and

other cases in which this Court examined the actual

connection between the known facts and the challenged government action. In such cases, the Court has

7

expressly refused to conjure up its own post-hoc rationalizations for challenged laws. See, e.g., Eisenstadt, 405

U.S. at 450–52 (rejecting the argument “that the purpose of the amendment was to serve the health needs

of the community” because “[i]t is plain that Massachusetts had no such purpose in mind”).

In other cases, however, courts have used the fictitious or hypothetical version of rational basis that the

court below used—one in which a court disregards the

actual facts, and asks instead whether in theory, it is

possible to imagine that some legislature could have

believed that the law would advance some conceivably

legitimate government interest. In practice, this hypothetical version of rational basis functions, as this

Court warned in Borden’s Farm Prods., as “a rule of

law which makes legislative action invulnerable to

constitutional assault . . . by treating any fanciful conjecture as enough to repel attack.” 293 U.S. at 209.

One good example would be Meadows v. Odom,

360 F. Supp. 2d 811 (M.D. La. 2005), vacated as moot,

198 Fed. Appx. 348 (5th Cir. 2006), in which the plaintiff challenged the constitutionality of a state law imposing a costly, time-consuming testing and licensing

requirement on florists. Extensive testimony before

the trial court showed that the unlicensed practice of

floristry—which is legal in all states except Louisiana—was not a genuine threat to public health and

safety. There were no actual instances of harm to consumers, and the risk was remote in the extreme. The

trial court nevertheless ruled against the plaintiffs, not

on the basis of the evidence in the record, but instead

8

on pure speculation and subjective opinion. It quoted a

witness saying “I believe that the [licensing requirement] does protect people. . . . [Florists are] very diligent about not having an exposed pick, not having a

broken wire, not have a flower that has some type of

infection, like, dirt that remained on it . . . and I think

that because of this training, that prevents the public

from having any injury.” Id. at 824 (emphasis added).

There was no evidence of this actually being a danger

in the real world, but the court found that this purely

hypothetical possibility was sufficient justification to

forbid people from arranging flowers for money without government approval.

The human consequences of that ruling were severe, and show that this is not a matter of mere abstract theory. The plaintiff, once deprived of her means

of livelihood, was unable to afford her medical costs

and died under tragic circumstances. As her attorney

later observed, as quoted in Mark Flatten, Protection

Racket at 6, “[s]he died a few weeks later—alone, unemployed, and in poverty because . . . a federal judge

just determined he would turn a blind eye . . . and pretend as if the state might actually be trying to benefit

consumers instead of the anticompetitive interests of

the Louisiana State Florists’ Association.”

9

B. The Confusion over Rational Basis is

So Severe, Courts Now Frequently Dismiss Rational-Basis Lawsuits without

Even Allowing Plaintiffs to Introduce

Evidence

Another extreme and troubling example is Hettinga, 677 F.3d 471. It held not only that courts can invent purely speculative and hypothetical justifications

to rule against plaintiffs in rational-basis cases, but

that they can do so at the motion to dismiss stage. 677

F.3d at 479. Because the government defendant “provided a rational explanation” for the challenged law—

not actual evidence, but simply an “explanation” that

it advanced in its 12(b)(6) motion—the court found

that the plaintiff was not even entitled to put on evidence to prove his well-pleaded allegations. Id. And

because “the government provided an explanation

that is . . . rational on its face,” the Court of Appeals

affirmed dismissal. Id.

Similarly, in Jones v. Temmer, 829 F. Supp. 1226

(D. Colo. 1993), vacated as moot, 57 F.3d 921 (10th Cir.

1995), the district court dismissed a constitutional

challenge to a law limiting the number of taxicabs that

could operate in Denver. The plaintiffs alleged that the

law’s connection to public health and safety was a pretext, and that in fact the law blocked them from practicing their trade without a rational basis. There is

nothing inherently implausible about such an argument—indeed, plaintiffs have prevailed in similar

cases; see, e.g., Bruner v. Zawacki, 997 F. Supp. 2d 691,

700–01 (E.D. Ky. 2014). But the District Court

10

dismissed the case prior to any discovery, based on the

government’s conclusory assertion in its motion to dismiss that the law served public interests. See, e.g.,

Jones, 829 F. Supp. at 1235.

It makes no sense for courts to dismiss rationalbasis cases at the 12(b)(6) stage based on the government’s mere assertion—backed by no facts—that the

challenged law serves a public good. Plaintiffs at the

12(b)(6) stage are entitled to a presumption in their

favor. Accordingly, some courts have held that the

rational-basis theory does not allow a court to simply

dismiss at the 12(b)(6) stage. See, e.g., Dias v. City &

Cnty. of Denver, 567 F.3d 1169, 1183 (10th Cir. 2009).

Yet the rational basis test cuts in the opposite direction from the pro-plaintiff 12(b)(6) standard—and,

indeed, if a plaintiff must negate every imaginable basis for a challenged law, even one that has no basis in

the record and is made up on the spot by the presiding

judge, then courts should, as a matter of logic dismiss

all rational-basis cases at the 12(b)(6) stage. Of course,

they do not do so—because “deference is not abdication

and ‘rational basis scrutiny’ is still scrutiny.” Nordlinger v. Hahn, 505 U.S. 1, 31 (1992) (Stevens, J., dissenting). And, in fact, plaintiffs do win rational-basis

cases.

Courts have struggled with the “perplexing situation” that arises “when the rational basis standard

meets the standard applied to a dismissal [motion].”

Wroblewski v. City of Washburn, 965 F.2d 452, 459 (7th

Cir. 1992). As Wroblewski explained, Rule 12(b)(6)

11

requires courts to construe the facts in the plaintiff ’s

favor, and “[t]he rational basis standard . . . cannot defeat the plaintiff ’s benefit of [this rule].” Id. Thus,

weighing the merits of a rational-basis case at the

pleading stage is improper. Id. at 460. That decision

was consistent with the earlier decision of Keenon v.

Conlisk, 507 F.2d 1259, 1261 (7th Cir. 1974), which held

that rational basis is a merits analysis that is not

properly used at the motion to dismiss stage, and that

“[b]ald assertions that the [government’s actions] are

reasonable cannot be considered.”

Yet the Seventh Circuit withdrew from that position in a later case, when it held that a trial court may

“analyze the possible justifications for” a challenged

law even at the 12(b)(6) stage before any evidence has

been gathered or presented to the court. Flying J Inc.

v. City of New Haven, 549 F.3d 538, 545 (7th Cir. 2008).

Other courts have likewise struggled with this

“perplexing situation,” with some holding that rationalbasis cases should not be dismissed under Rule

12(b)(6)—see, e.g., Dias, supra; Silveira v. Lockyer, 312

F.3d 1052, 1089–92 (9th Cir. 2002); Pruitt v. Cheney,

963 F.2d 1160, 1166 (9th Cir. 1991)5—and others

5

In addition to those cited above, see, e.g., Dragovich v. U.S.

Dep’t of the Treasury, 764 F. Supp. 2d 1178 (N.D. Cal. 2011); Dawkins v. Richmond Cnty. Sch., No. 1:12CV414, 2012 WL 1580455 at

*5 (M.D.N.C. May 4, 2012); Immaculate Heart Cent. Sch. v. N.Y.

State Pub. High Sch. Athletic Ass’n, 797 F. Supp. 2d 204, 211, 216

(N.D.N.Y. 2011); Bench Billboard Co. v. City of Cincinnati, No.

1:07cv589, 2008 WL 2220625 at *9 (S.D. Ohio May 28, 2008); Lazy

Y Ranch, Ltd. v. Wiggins, No. CV06-340-S-MHW, 2007 WL

1381805 at *7–8 (D. Idaho Mar. 13, 2007); Cornwell v. California

12

holding the opposite. See, e.g., Hettinga, supra; Carter,

392 F.3d at 968.

Remarkably, some circuits are even in conflict

with themselves over this matter. The Fourth Circuit,

for example, has adopted the rule that rational basis

does not entitle a trial court to dismiss a rational-basis

case on a 12(b)(6) motion. See, e.g., Phan v. Virginia,

806 F.2d 516, 521 n.6 (4th Cir. 1986) (“the simple articulation of a justification for a challenged classification

does not conclude the judicial inquiry”); Giarratano v.

Johnson, 521 F.3d 298, 303–04 (4th Cir. 2008) (rational

basis “cannot defeat the plaintiff ’s benefit of the broad

Rule 12(b)(6) standard”). Yet it has subsequently failed

to follow that rule. In Colon Health Ctrs. of Am., LLC

v. Hazel, 733 F.3d 535, 548 (4th Cir. 2013), for example,

it held that dismissal was appropriate so long as a

judge could imagine that a rationale existed for a challenged law.

The Sixth and Eighth Circuits are also in internal

conflict over whether the “any conceivable basis” barrier to rational-basis challenges should bar plaintiffs

from even having the chance to prove their cases. Compare Midkiff v. Adams Cnty. Reg’l Water Dist., 409 F.3d

758, 769–71 (6th Cir. 2005) (dismissal proper), and

Carter, supra (dismissal proper), with Bower v. Village

of Mount Sterling, 44 Fed. Appx. 670, 678 (6th Cir.

2002) (dismissal improper), and City of St. Paul v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 413 F.2d

Bd. of Barbering & Cosmetology, 962 F. Supp. 1260, 1273 (S.D.

Cal. 1997).

13

762, 767 (8th Cir. 1969) (rational basis should be decided “upon the whole record”).6

II.

This Court’s Own Decisions are In Disarray

on This Question.

This contradiction is the result of this Court’s own

self-contradictory precedents. Some of them endorse

the hypothetical rational-basis approach, and some reject that approach.

When it created the rational basis test in 1934,7

this Court made clear that the test “is a presumption

of fact,” meaning that it imposes “a rebuttable presumption” that the challenged statute is constitutional. Borden’s Farm Prods., 293 U.S. at 209. Judges

should not transform the rational basis test into “a

conclusive presumption, or a rule of law which makes

legislative action invulnerable to constitutional assault” by “treating any fanciful conjecture as enough to

repel [legal] attack.” Id. While plaintiffs in rationalbasis cases “must carry the burden” of demonstrating

6

This confusion has even infected state courts, which often

rely on federal rational-basis precedent to apply their own rational basis tests. Compare Brigham v. State, 889 A.2d 715, 721

(Vt. 2005); ABD Liberty, Inc. v. State, Dept. of Envtl. Prot., No.

SOM-L-505-05, 2005 WL 2095735 *9 (N.J. Super. Ct. 2005) (dismissal of rational-basis case at pleading stage improper), with

Granville v. Minneapolis Pub. Sch. Dist. No. 1, 668 N.W.2d 227,

234–35 (Minn. Ct. App. 2003) (rational-basis plaintiffs are entitled to present evidence to prove their well-pleaded allegations);

Killeen v. Crosson, 638 N.Y.S.2d 531, 534 (N.Y. App. Div. 1996)

(same).

7

Nebbia v. People of N.Y., 291 U.S. 502 (1934).

14

that a challenged law is unconstitutional, they may do

so “by a resort to common knowledge or other matters

which may be judicially noticed, or to other legitimate

proof, that the action is arbitrary.” Id.

The Court reiterated this point in several cases

that followed: the rational basis test is not a license for

judges to manufacture hypothetical justifications for a

challenged law. Nor should it be used to block plaintiffs

from presenting evidence to rebut the factual presumption of rationality. In Nashville, C. & St. L. Ry. v.

Walters, 294 U.S. 405, 414–15 (1935), this Court reversed a state court’s ruling that plaintiffs could not

present evidence to challenge the constitutionality of a

regulation of railroads. In Polk Co. v. Glover, 305 U.S. 5

(1938), it again said that rational-basis plaintiffs are

“entitle[d] . . . to an opportunity to prove their case.”

Id. at 9–10.

And United States v. Carolene Prods. Co., 304 U.S.

144 (1938), made clear once more that the rational basis test is not an impenetrable shield: “Where the existence of a rational basis for legislation whose

constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may

properly be made the subject of judicial inquiry,” the

Court said. If “the constitutionality of a statute” is

“predicated upon the existence of a particular state of

facts,” then that law’s constitutionality “may be challenged by showing to the court that those facts have

ceased to exist.” Id. at 153. In fact, the plaintiff in Carolene Products did later succeed in showing the court

that the facts justifying the statute had ceased to exist,

15

and the challenged law was invalidated. Milnot Co. v.

Richardson, 350 F. Supp. 221, 223–24 (N.D. Ill. 1972).

Later decisions, however, sowed confusion, as the

Court began to say that judges could uphold challenged statutes on the basis of imaginary and purely

hypothetical post hoc rationalizations concocted in the

absence of evidence. In Lee Optical, 348 U.S. at 487–88,

for instance, the Court held that a statute could survive rational-basis review on a purely imaginary theory that the legislature “might have” believed it would

serve a legitimate goal.

Yet in still more recent cases, the Court has not

followed that rule. In Eisenstadt, Moreno, Zobel, and

other decisions, it refused to invent rationalizations to

justify laws challenged under rational basis. This led

Justice Brennan to conclude that “[w]hile we have in

the past exercised our imaginations to conceive of possible rational justifications for statutory classifications,” the Court had come to repudiate that approach

and had “declined to manufacture justifications in order to save an apparently invalid statutory classification.” Schlesinger v. Ballard, 419 U.S. 498, 520–21

(1975) (Brennan, J., dissenting).

Confusion remains, however. Beach Commc’ns,

508 U.S. at 315, declared facts are “entirely irrelevant”

in a rational-basis case, because courts can devise their

own after-the-fact justifications for a law, and uphold

them even where the actual facts show that the legislature did not contemplate the purposes attributed to

those statutes afterwards. Yet only a short time later,

16

the Court held that under rational-basis review, a statute “must find some footing in the realities of the subject,” Heller v. Doe, 509 U.S. 312, 321 (1993) (emphasis

added), and Cleburne and Romer later refused to manufacture rationalizations for statutes—and actually

ruled them invalid under the rational basis test.

This Court’s most recent discussion of the role that

purely imaginary facts play in the rational basis test

came in Justice Kennedy’s decisive separate opinion in

Kelo v. New London, Conn., 545 U.S. 469 (2005). Observing that rational-basis review applies when property owners challenge the taking of property through

eminent domain, he concluded that courts must “review the record” to determine whether a challenged

condemnation is constitutional. Id. at 491 (Kennedy, J.,

concurring). If a plaintiff makes “a clear showing” that

a condemnation is “pretextual” and designed to benefit

a private party, the judge should “review the record to

see if it has merit, though with the presumption that

the government’s actions were reasonable.” Id. (emphasis added). This would make no sense under the hypothetical version of the rational basis test adopted by

the court below. Under that approach, a court could always manufacture its own purely imaginary basis justifying a condemnation.

Most of all, the version of rational basis endorsed

below is disturbing in light of the basic proposition

that due process of law protects every person’s right to

“the benefit of the general law . . . which hears before

it condemns, which proceeds not arbitrarily or capriciously, but upon inquiry, and renders judgment only

17

after trial.” Truax v. Corrigan, 257 U.S. 312, 332 (1921).

A legal rule that allows the fact-finder to base its judgment on admittedly manufactured evidence—on posthoc rationalizations invented by the judge—violates

these basic precepts.

Perhaps the clearest proof of the problems created

by the hypothetical rational-basis theory is to be found

in an oral argument in a Ninth Circuit case in which

Judge William Fletcher sought to clarify what is meant

by the idea of negating every “conceivable” basis for a

law:

Judge Fletcher: Can I get at your definition

of “conceivable?” To take an outer-boundary

sort of example. . . .

[Justice Department Attorney]:

Sure.

Judge Fletcher: . . . not related to this case.

Is it conceivable that space aliens are visiting

this planet in invisible and undetectable

craft?

[Attorney]: Is it conceivable?

Judge Fletcher:

That’s my question.

[Attorney]: Yes, it’s conceivable.

Judge Fletcher: And that would be a basis

for sustaining Congressional legislation, if . . .

the person sponsoring the bill said, “Space aliens are visiting us in invisible and undetectable craft, and that’s the basis for my

legislation,” we can’t touch it?

18

[Attorney]: If Congress made a finding of

that sort?

Judge Fletcher:

That’s my question.

[Attorney]: Your Honor, I think if Congress

made a finding of that sort, I think, Your

Honor, it would not be appropriate for this

Court to second guess that.

Judge Fletcher: Okay, in other words, “conceivable” is “any piece of nonsense is enough.”

[Attorney]: Your Honor, I don’t think. . . . It

is largely unbounded. It is not completely unbounded. There are the outlying—

Judge Fletcher: How can you say it’s not

completely unbounded when you agreed with

my absolutely preposterous example of what’s

conceivable?

Quoted in Gideon Kanner, “[Un]equal Justice Under

Law”: The Invidiously Disparate Treatment of American Property Owners in Taking Cases, 40 LOY. L.A. L.

REV. 1065, 1080 n.68 (2007).

That should not be the law—and cannot be, since

plaintiffs do sometimes win rational-basis cases. Yet

given the lack of definition in the law, it is a plausible

interpretation of what rational basis means. All this

confusion proceeds from the same faulty premise: that

courts can manufacture justifications for challenged

laws, without any genuine factual basis in the record.

Only this Court can clarify the vague boundaries of

19

rational basis and ensure that that test is not rendered

utterly irrational.

------------------------------------------------------------------

CONCLUSION

It should not be a remarkable proposition that

courts rely on actual facts in making decisions. The

court below, however, relied on a theory that expressly

allows courts to manufacture their own facts and to

render judgment based not on the reality of the case

but on a judge’s mere imagination. That rule does not

just contradict the basic principles of due process—it

generates considerable confusion among trial courts

that do not even know how to deal with motions to dismiss in light of this test. This Court alone can resolve

this problem.

The petition should be granted.

Respectfully submitted:

DATED: May, 2018

TIMOTHY SANDEFUR

Counsel of Record

SCHARF–NORTON CENTER FOR

CONSTITUTIONAL LITIGATION

AT THE GOLDWATER INSTITUTE

500 East Coronado Road

Phoenix, Arizona 85004

(602) 462-5000

litigation@goldwaterinstitute.org

Counsel for Amicus Curiae