Amicus Curiae Brief — Altagracia Sanchez, et al., Petitioners v. District of Columbia Office of the State Superintendent of Education, et al.

No. 22-543

In The

Supreme Court of the United States

____________________

ALTAGRACIA SANCHEZ, DALE SORCHER,

AND JILL HOMAN,

Petitioners,

v.

OFFICE OF THE STATE SUPERINTENDENT OF

EDUCATION AND DISTRICT OF COLUMBIA,

Respondents.

____________________

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the District of Columbia Circuit

____________________

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION

IN SUPPORT OF THE PETITIONERS

____________________

LAWRENCE G. SALZMAN

Counsel of Record

WILSON C. FREEMAN

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

LSalzman@pacificlegal.org

WFreeman@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

IDENTITY AND INTEREST OF

AMICUS CURIAE ...................................................... 1

SUMMARY OF THE ARGUMENT ........................... 1

ARGUMENT ............................................................... 5

I.

The right to earn a living in childcare, a

longstanding ordinary occupation, is a

fundamental right ............................................ 5

II. This Court should clarify the application

of the rational basis test .................................. 8

a. Rules 8 and 12 of the Federal Rules of

Civil Procedure require plaintiffs have the

opportunity to prove a law’s irrationality,

even if alternative explanations are

plausible ......................................................... 9

b. Many lower courts, including the

D.C. Circuit here, improperly apply

Rule 12(b)(6) in rational basis cases ........... 12

c. Rational basis review, properly understood,

is not in tension with the pleading

standard—but courts remain confused

and divided .................................................. 14

III. This case is particularly important because it

indirectly implicates the rights of parents to

direct the care of their children ..................... 17

CONCLUSION.......................................................... 20

ii

TABLE OF AUTHORITIES

Cases

Am. Commc’ns Ass’n v. Douds,

339 U.S. 382 (1950) ............................................. 19

Anderson News, L.L.C. v. American Media, Inc.,

680 F.3d 162 (2d Cir. 2012), cert. denied,

133 S. Ct. 846 (2013) ........................................... 11

Angstadt v. Midd-West Sch. Dist.,

377 F.3d 338 (3d Cir. 2004) ................................. 19

Att’y Gen. of New York v. Soto-Lopez,

476 U.S. 898 (1986) ............................................. 18

Bates v. City of Little Rock,

361 U.S. 516 (1960) ......................................... 4, 18

Baumgardner v. Cnty. of Cook,

108 F. Supp. 2d 1041 (N.D. Ill. 2000) ................. 15

Bd. of Regents v. Roth,

408 U.S. 564 (1972) ............................................... 7

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) ............................................... 3

Borden’s Farm Prods. Co. v. Baldwin,

293 U.S. 194 (1934) ....................................... 14–15

Brace v. Cnty. of Luzerne,

873 F. Supp. 2d 616 (M.D. Pa. 2012) .................. 15

Brown v. Zavaras,

63 F.3d 967 (10th Cir. 1995) ............................... 15

Brusznicki v. Prince George’s County,

No. 21-1621, slip op. (4th Cir. Aug. 2, 2022) ........ 7

Carter v. Arkansas,

392 F.3d 965 (8th Cir. 2004) ............................... 13

iii

The Case of the Tailors of Ipswich,

77 Eng. Rep. 1218 (K.B. 1615) .......................... 5–6

City of Cleburne v. Cleburne Living Ctr.,

473 U.S. 432 (1985) ............................................. 16

Conn v. Gabbert,

526 U.S. 286 (1999) ............................................... 7

Corfield v. Coryell,

6 F. Cas. 546 (C.C.E.D. Pa. 1823) ..................... 6–7

Cornwell v. Cal. Bd. of Barbering & Cosmetology,

962 F. Supp. 1260 (S.D. Cal. 1997) ..................... 15

Darcy v. Allein,

77 Eng. Rep. 1260 (K.B. 1603) .............................. 6

Dent v. West Virginia,

129 U.S. 144 (1889) ............................................... 7

Dias v. City & Cnty. of Denver,

567 F.3d 1169 (10th Cir. 2009) ........................... 15

Dobbs v. Jackson Women’s Health Org.,

142 S. Ct. 2228 (2022) ........................................... 5

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

764 F. Supp. 2d 1178 (N.D. Cal. 2011) ............... 15

FCC v. Beach Communications, Inc.,

508 U.S. 307 (1993) ............................................. 16

Giarratano v. Johnson,

521 F.3d 298 (4th Cir. 2008) ........................... 9, 15

Greene v. McElroy,

360 U.S. 474 (1959) ............................................... 1

Healy v. James,

408 U.S. 169 (1972) ............................................. 18

iv

Heller v. Doe,

509 U.S. 312 (1993) ............................................. 16

Hettinga v. United States,

677 F.3d 471 (D.C. Cir. 2012) ..................... 3, 8, 13

Hettinga v. United States,

770 F. Supp. 2d 51 (D.D.C. 2011) ....................... 13

Hicklin v. Orbeck,

437 U.S. 518 (1978) ............................................... 7

Jones v. Temmer,

829 F. Supp. 1226 (D. Colo. 1993), vacated as

moot, 57 F.3d 921 (10th Cir. 1995) ..................... 13

Meyer v. Nebraska,

262 U.S. 390 (1923) ............................................. 17

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

409 F.3d 758 (6th Cir. 2005) ............................... 13

Munie v. Koster,

No. 4:10CV01096 AGF, 2011 U.S. Dist.

LEXIS 22841 (E.D. Mo. Mar. 7, 2011) ................ 15

NAACP v. Alabama ex rel. Patterson,

357 U.S. 449 (1958) ................................... 4, 18–19

Nebbia v. New York,

291 U.S. 502 (1934) ............................................... 7

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

469 S.W.3d 69 (Tex. 2015) ..................................... 8

Pierce v. Soc’y of the Sisters of the Holy

Names of Jesus & Mary,

268 U.S. 510 (1925) ............................................. 17

Polk Co. v. Glover,

305 U.S. 5 (1938) ................................................. 15

v

Romer v. Evans,

517 U.S. 620. (1996) ............................................ 16

Sanchez v. Off. of State Superintendent of Educ.,

45 F.4th 388 (D.C. Cir. 2022) .............. 3, 12, 14, 19

Star Sci., Inc. v. Beales,

278 F.3d 339 (4th Cir. 2002) ............................... 13

Stidham v. Texas Comm’n on Priv. Sec.,

418 F.3d 486 (5th Cir. 2005) ............................. 7–8

Sup. Ct. of N.H. v. Piper,

470 U.S. 274 (1985) ............................................... 7

Swanson v. Citibank, N.A.,

614 F.3d 400 (7th Cir. 2010) ............................... 11

T.W. by and through Waltman v.

S. Columbia Area Sch. Dist.,

No. 4:20-CV-01688, 2020 WL

5751219 (E.D. Penn. Sept. 25, 2020) .................. 19

Thomas v. Review Bd. of Indiana Emp. Sec. Div.,

450 U.S. 707 (1981) ............................................. 18

Timbs v. Indiana,

139 S. Ct. 682 (2019) ............................................. 5

Tiwari v. Friedlander,

26 F.4th 355 (6th Cir. 2022) .................................. 7

Tiwari v. Friedlander,

No. 3:19-CV-884-JRW-CHL,

2020 WL 4745772 (W.D. Ky. Aug. 14, 2020) ...... 15

Trejo v. Shoben,

319 F.3d 878 (7th Cir. 2003) ................................. 7

Troxel v. Granville,

530 U.S. 57 (2000) ............................................... 17

vi

United States v. Carolene Prods. Co.,

304 U.S. 144 (1938) ............................................... 2

Vill. of Willowbrook v. Olech,

528 U.S. 562 (2000) ............................................. 15

Washington v. Glucksberg,

521 U.S. 702 (1997) ............................................... 5

Williamson v. Lee Optical of Okla., Inc.,

348 U.S. 483 (1955) ............................................. 16

Wilson-Perlman v. MacKay,

No. 2:15-CV-285 JCM (VCF), 2016

WL 1170990 (D. Nev. Mar. 23, 2016) ........... 13–14

Wroblewski v. Washburn,

965 F.2d 452 (7th Cir. 1992) ........................... 9, 15

Other Authorities

Barnett, Randy E., Does the Constitution

Protect Economic Liberty?,

35 Harv. J.L. & Pub. Pol’y 5 (2012) .................. 1–2

BLACKSTONE, WILLIAM, 1,

COMMENTARIES ON THE LAWS OF

ENGLAND (8th ed. 1780)......................................... 6

COKE, EDWARD, THE SECOND PART OF

THE INSTITUTES OF THE LAWS OF

ENGLAND (1797 ed.) ............................................... 6

6 DEBATES IN CONGRESS (Gales and Seaton 1838) .... 2

Fed. R. Civ. P. 8(a)(2) .............................................. 3, 9

5B Federal Practice & Procedure Civil

§ 1357 (3d ed.) ...................................................... 10

vii

Mem. Op. & Order, Truesdell v.

Friedlander, No. 3:19-cv-00066GFVT-EBA (E.D. Ky. May 3, 2022),

ECF No. 120......................................................... 13

Oral Argument, Alaska Cent. Exp. Inc.

v. United States,

145 F. App’x 211 (9th Cir. 2005),

https://cdn.ca9.uscourts.gov/datastor

e/media/2005/07/13/03-35902.mp3 ...................... 14

Roger Sherman’s Draft of the Bill of Rights,

in THE RIGHTS RETAINED BY THE PEOPLE:

THE HISTORY AND MEANING OF THE NINTH

AMENDMENT 351 (Randy E. Barnett ed.,

1989)................................................................... 1–2

Sandefur, Timothy, Rational Basis and

the 12(b)(6) Motion: An Unnecessary

“Perplexity”, 25 Geo. Mason U.

Civ. Rts. L.J. 43 (2014) ................................ 3−4, 10

Sandefur, Timothy, The Right to Earn a Living,

6 Chap. L. Rev. 207 (2003) ................................ 7–8

SIEGAN, BERNARD H., ECONOMIC LIBERTIES

AND THE CONSTITUTION (1st ed. 1980) .................. 2

Simpson, Steven M.,

Judicial Abdication and the Rise of Special

Interests, 6 Chap. L. Rev. 173 (2003) .................... 8

1

IDENTITY AND INTEREST

OF AMICUS CURIAE 1

Amicus Curiae Pacific Legal Foundation (PLF) is a

nonprofit legal foundation that defends the principles

of liberty and limited government, including the right

to earn a living. For over 40 years, PLF has litigated

in support of the rights of individuals to pursue the

livelihood of their choice and to raise their children

free of arbitrary or irrational interference.

SUMMARY OF THE ARGUMENT

The right to earn a living was at the top of the Bill

of Rights’ framers’ minds. “[T]he right to hold specific

private employment and to follow a chosen profession

free from unreasonable governmental interference

comes within the ‘liberty’ and ‘property’ concepts of

the Fifth Amendment.” Greene v. McElroy, 360 U.S.

474, 492 (1959). The framers’ writings regarding the

Ninth Amendment reveal that Amendment was

meant to codify unenumerated “natural” rights

including “the right[] ... of acquiring property and of

pursuing happiness & Safety.” Randy E. Barnett,

Does the Constitution Protect Economic Liberty?, 35

Harv. J.L. & Pub. Pol’y 5, 5−6 (2012) (quoting Roger

Sherman’s Draft of the Bill of Rights, in THE RIGHTS

RETAINED BY THE PEOPLE: THE HISTORY AND MEANING

1 Pursuant to this Court’s Rule 37.2(a), all parties have received

timely notice of Amicus Curiae’s intention to file. Pursuant to

Rule 37.6, Amicus Curiae affirms that no counsel for any party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than Amicus Curiae

PLF, its members, or its counsel made a monetary contribution

to its preparation or submission.

2

OF THE NINTH AMENDMENT

351 app. A (Randy E.

Barnett ed., 1989)). See also 6 DEBATES IN CONGRESS

320 (Gales and Seaton 1838) (“[T]here are certain

natural rights, of which men, when they form a social

compact, cannot deprive or divest their posterity;

among which are the enjoyment of life and liberty,

with the means of acquiring, possessing, and

protecting property, and pursuing and obtaining

happiness and safety.”).

At the time of the Bill of Rights’ adoption,

“economic and personal liberty ... were considered

inextricably intertwined.” Barnett, 35 Harv. J.L. &

Pub. Pol’y at 7. But this original understanding has

been undermined by a near century-long bifurcation

of economic liberty from all other liberties for

purposes of constitutional scrutiny. See United States

v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

This bifurcation has no basis in the text of the

Constitution: The Due Process Clause of the Fifth

Amendment draws no distinction between the types of

“liberty” it protects. The Court can begin to repair this

longstanding

mistake

by

acknowledging

a

fundamental right to earn a living in common

occupations like childcare.

Beyond this ahistorical classification of economic

rights as second-class, the current “rational basis test”

used to review economic regulations has generated

innumerable problems in the lower courts. In many

cases, rational basis review ensures that “any law that

legislators pass will be sustained unless they were in

a complete state of lunacy at the time they acted.”

BERNARD H. SIEGAN, ECONOMIC LIBERTIES AND THE

CONSTITUTION 121 (1st ed. 1980). The Constitution’s

3

“guarantee of liberty deserves more respect—a lot

more.” Hettinga v. United States, 677 F.3d 471, 483

(D.C. Cir. 2012) (Brown, J., concurring).

One significant problem with the rational basis

test, highlighted in this case, is how it has been

interpreted by some lower courts to undermine the

Rules of Civil Procedure. Rule 8 requires only a “short

and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

And, in considering motions to dismiss, factual

matters alleged in a complaint must be taken as

true—regardless of whether a judge regards recovery

as “very remote and unlikely.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007).

But in cases involving economic liberty, courts

often do not abide the “short and plain statement”

requirement. Some lower courts, including the D.C.

Circuit in this case, impose an impossible burden on

plaintiffs by requiring them to anticipate and refute

every conceivable justification for a law in advance.

This novel procedure effectively “short-circuits”

economic rights lawsuits “by dismissing them prior to

any fact-finding, on the theory that plaintiffs could

never introduce enough evidence to disprove every

conceivable basis for the laws they challenge, and thus

could not possibly prevail under the rational basis

test.” Timothy Sandefur, Rational Basis and the

12(b)(6) Motion: An Unnecessary “Perplexity”, 25 Geo.

Mason U. Civ. Rts. L.J. 43, 44 (2014). See also Sanchez

v. Off. of State Superintendent of Educ., 45 F.4th 388,

396 (D.C. Cir. 2022) (requiring plaintiff to “refut[e]

every conceivable basis which might support” the

challenged regulation (quotation omitted)). This

4

approach turns rational basis into what courts have

long said it is not: “a rubber stamp of all legislative

action.” Sandefur, 25 Geo. Mason U. Civ. Rts. L.J. at

44 (quotation omitted). This Court has never approved

this distortion of the Federal Rules and it can use this

case as an opportunity to correct the problem.

These problems are particularly impactful here,

because of the significant interests at stake. This case

implicates more than just the right to earn a living; it

indirectly implicates the rights of parents to direct the

care of their children. This Court has repeatedly

recognized that different rights are in practical reality

interconnected, such that a direct restriction on one

can lead to an indirect restriction on another. See, e.g.,

Bates v. City of Little Rock, 361 U.S. 516, 523 (1960)

(holding that direct violation of NAACP records

custodians’ freedom of speech indirectly violated

NAACP members’ freedom of association); NAACP v.

Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958)

(“In the domain of ... indispensable liberties ... the

decisions of this Court recognize that abridgement of

such rights, even though unintended, may inevitably

follow from varied forms of governmental action. ...

The governmental action challenged may appear to be

totally unrelated to protected liberties.”). In

Petitioners’ case, the direct restriction of Petitioners

Sanchez and Sorchers’ economic liberty has caused an

indirect

restriction

of

Petitioner

Homan’s

fundamental parental rights.

5

ARGUMENT

I.

The right to earn a living in childcare,

a longstanding ordinary occupation, is

a fundamental right

In Dobbs, this Court made clear that it affords

strong protection to rights that are “deeply rooted in

[our] history and tradition” and “essential to our

Nation’s scheme of ordered liberty.” Dobbs v. Jackson

Women’s Health Org., 142 S. Ct. 2228, 2242 (2022)

(quoting Timbs v. Indiana, 139 S. Ct. 682, 686 (2019)).

See also Washington v. Glucksberg, 521 U.S. 702, 721

(1997). In determining whether a right is “deeply

rooted” and “essential” to our scheme of ordered

liberty, the Court has “engaged in a careful analysis

of the history of the right at issue.” 142 S. Ct. at 2246

(internal quotation marks omitted). The methodology

applied in Dobbs and other cases reveals that the right

to earn a living is as deeply rooted as any right the

Court has discussed. Some recognition of a right to

engage in a common occupation has been recognized,

first in the common law, then in the legal history of

the United States, for centuries.

This is confirmed by the same “eminent commonlaw authorities” which this Court has repeatedly

relied upon. See Dobbs, 142 S. Ct. at 2249 (citation

omitted). Sir Edward Coke, for example, repeatedly

explained that excessive labor restrictions and state

established monopolies violated common law, various

Acts of Parliament, and the Magna Carta. See, e.g.,

The Case of the Tailors of Ipswich, 77 Eng. Rep. 1218

(K.B. 1615) (“[A]t the common law, no man could be

prohibited from working in any lawful trade … and

6

therefore the common law abhors all monopolies.”);

Darcy v. Allein, 77 Eng. Rep. 1260, 1263−64 (K.B.

1603) (“[E]very man’s trade maintains his life, and

therefore he ought not to be deprived or dispossessed

of it, no more than of his life.”) (citing Deuteronomy

24:6). See also EDWARD COKE, THE SECOND PART OF

THE INSTITUTES OF THE LAWS OF ENGLAND 47 (1797

ed.) (“Generally all monopolies are against this great

charter, because they are against the liberty and

freedom of the subject, and against the law of the

land.”). Similarly, Sir William Blackstone, writing

very close to the founding, wrote that, under the

common law, “every man might use what trade he

pleased.” 1 WILLIAM BLACKSTONE, COMMENTARIES ON

THE LAWS OF ENGLAND 427−28 (8th ed. 1780).

Blackstone went on to discuss how, where the public

interest might warrant exceptions to this general rule,

the courts carefully restrained and examined such

exemptions. Id. In particular, Blackstone discussed

English laws limiting the liberty of those that served

as apprentices. Those laws “occasioned a great variety

of resolutions in the courts of law” and “in general

[were] rather confined than extended.” Id. at 428

(citing cases).

Early American caselaw throughout the country

affirmed the existence of a fundamental freedom to

earn a living. For example, in Corfield v. Coryell, 6 F.

Cas. 546, 551 (C.C.E.D. Pa. 1823), Supreme Court

Justice Bushrod Washington listed it among the

“fundamental” privileges and immunities of “citizens

of all free governments.” Id. See also id. at 552

(interpreting Section 2 of Article IV of the

Constitution, discussing “privileges and immunities,”

listing “[T]he enjoyment of life and liberty, with the

7

right to acquire and possess property of every kind. …

[And] the right of a citizen of one state to pass

through, or to reside in any other state, for purposes

of trade, agriculture, professional pursuits, or

otherwise.”). Similarly, one scholar identifies about

sixty cases between 1823 and 1873 discussing the

common law right to free labor. See Timothy

Sandefur, The Right to Earn a Living, 6 Chap. L. Rev.

207, 225 (2003).

While the Court pivoted away from robust

protection of this right in the 1930’s, see Nebbia v.

New York, 291 U.S. 502 (1934), the right to pursue a

lawful occupation has continued to be cited and relied

on to the present day. See, e.g., Conn v. Gabbert, 526

U.S. 286, 291−92 (1999) (citing Dent v. West Virginia,

129 U.S. 144 (1889), and acknowledging a

“generalized due process right to choose one’s field of

private employment”); Sup. Ct. of N.H. v. Piper, 470

U.S. 274, 280 n.9 (1985) (describing “the pursuit of a

common calling” as “one of the most fundamental of

those privileges” protected by the Privileges and

Immunities Clause); Bd. of Regents v. Roth, 408 U.S.

564, 572 (1972) (liberty “denotes … the right of the

individual … to engage in any of the common

occupations of life”); Brusznicki v. Prince George’s

County, 42 F.4th 413, 421 (4th Cir. 2022) (per curiam)

(noting a “fundamental right” to “pursue a common

calling”) (citing Hicklin v. Orbeck, 437 U.S. 518, 524

(1978)); Tiwari v. Friedlander, 26 F.4th 355, 360 (6th

Cir. 2022) (acknowledging that laws which interfere

with the “right to engage in a chosen occupation”

violate the Fourteenth Amendment); Trejo v. Shoben,

319 F.3d 878, 889 (7th Cir. 2003) (same); Stidham v.

Texas Comm’n on Priv. Sec., 418 F.3d 486, 491 (5th

8

Cir. 2005) (“We have confirmed the principle that one

has a constitutionally protected liberty interest in

pursuing a chosen occupation.”); Patel v. Texas Dep’t

of Licensing & Regul., 469 S.W.3d 69, 92 (Tex. 2015)

(Willett, J., concurring) (“Self-ownership, the right to

put your mind and body to productive enterprise, is

not a mere luxury to be enjoyed at the sufferance of

governmental grace, but is indispensable to human

dignity and prosperity.”).

Despite these cases, many courts are unaware of

the right to earn a living’s importance or historical

provenance. See, e.g., Sandefur, 6 Chap. L. Rev. at

259−61 (discussing confusion among courts with

respect to the right to earn a living). The consequence

has been the proliferation of protectionist licensing

and certificate of need laws, and needlessly

burdensome professional requirements, as in this

case. As two judges of the D.C. Circuit have observed,

“[t]he practical effect of rational basis review of

economic regulation is the absence of any check on the

group interests that all too often control the

democratic process.” Hettinga, 677 F.3d at 482

(Brown, J., concurring); see also Patel, 469 S.W.3d at

104–05 (Willett, J., concurring) (discussing how

rational basis scrutiny has led to laws protecting

practitioners from unwanted competition); Steven M.

Simpson, Judicial Abdication and the Rise of Special

Interests, 6 Chap. L. Rev. 173, 191−92 (2003).

II.

This Court should clarify the

application of the rational basis test

Even if the right to earn a living is not afforded

enhanced scrutiny, this Court should correct the lower

9

courts in their application of the rational basis test.

The test was originally conceived as a rebuttable

presumption of constitutionality for economic

regulation. However, today, many lower courts treat

the test as an effectively irrebuttable rubber stamp.

This is most evident at the motion to dismiss stage,

where, as in this case, courts require plaintiffs to

affirmatively refute in an initial pleading every

conceivable justification for a challenged law.

This version of the rational basis test is

inconsistent with the Federal Rules of Civil

Procedure. Numerous courts have acknowledged this

and have adopted a different approach at the pleading

stage. See, e.g., Giarratano v. Johnson, 521 F.3d 298,

304 (4th Cir. 2008) (treating rational basis standard

as rebuttable “presumption of rationality”);

Wroblewski v. Washburn, 965 F.2d 452, 460 (7th Cir.

1992) (same).

a. Rules 8 and 12 of the Federal Rules

of Civil Procedure require plaintiffs

have the opportunity to prove a

law’s irrationality, even if

alternative explanations are

plausible

Plaintiffs, under Rule 8, need only plead a “short

and plain statement” of their claim. Fed. R. Civ. P.

8(a)(2). But when a court presented with a 12(b)(6)

motion requires the plaintiff to affirmatively rebut

every “conceivable basis which might” justify a

challenged law, plaintiffs are no longer pleading the

factual elements of a claim but writing a brief arguing

against and proving false every hypothetical

10

justification a judge could imagine. This is anathema

to ordinary civil practice.

In FEDERAL PRACTICE AND PROCEDURE, the

influential treatise on the Federal Rules, the authors

cite three propositions that are at the “heart” of the

12(b)(6) motion and have “universal acceptance:” “(1)

the complaint is construed in the light most favorable

to the plaintiff, (2) its allegations are taken as true,

and (3) all reasonable inferences that can be drawn

from the pleading are drawn in favor of the pleader.”

See § 1357 Motions to Dismiss—Practice Under Rule

12(b)(6), 5B FED. PRAC. & PROC. CIV. § 1357 (3d ed.).

But it is impossible to square these propositions with

a standard which requires plaintiffs to affirmatively

rebut all conceivable justifications for a challenged

law for several reasons.

First, such a requirement presents plaintiffs with

the “logically impossible task ... [of] draft[ing] a

complaint that guessed at every possible purpose for

the law, including speculative ones that perhaps no

legislator or official ever thought of before, and then

positively disprove each of these foundations.”

Sandefur, 25 Geo. Mason U. Civ. Rts. L.J. at 68−69.

Requiring plaintiffs to guess at hypothetical

justifications cannot possibly be consistent with the

requirement that a complaint be construed in the light

most favorable to the pleader. Rather, it is the

opposite rule: any justifications that plaintiffs do not

anticipate and positively disprove are considered

sufficient to defeat a claim. Plaintiffs under this

version of rational basis get unfavorable inferences—

their allegations are construed narrowly and

skeptically.

11

Second, by requiring plaintiffs to positively

disprove all justifications at the pleading stage, Rule

12(b)(6) is transformed from an analysis of the

adequacy of pleadings into an adjudication on the

merits wherein governmental justifications of

interest, legislative intent, and rational relation are

taken at face value. Again, this is the opposite of the

ordinary rule, where plaintiffs’ allegations are taken

as true—under this version of the rational basis test,

plaintiffs must prove up their allegations at the

pleading stage, and against judicial assumptions of

fact which they expressly deny and which they can

never in practice disprove.

Third, this version of rational basis improperly

assumes that the plausibility of plaintiff’s claim

should be weighed against the judge’s guess as to the

plausibility of alternative explanations for a law. But

it should not matter whether or not a court believes it

more plausible that the legislature acted rationally.

As numerous courts have explained, “a court … may

not properly dismiss a complaint that states a

plausible version of the events merely because the

court finds a different version more plausible.”

Anderson News, L.L.C. v. American Media, Inc., 680

F.3d 162, 185 (2d Cir. 2012), cert. denied, 133 S. Ct.

846 (2013). See Swanson v. Citibank, N.A., 614 F.3d

400, 404 (7th Cir. 2010) (“For cases governed only by

Rule 8, it is not necessary to stack up inferences side

by side and allow the case to go forward only if the

plaintiff’s inferences seem more compelling than the

opposing inferences.”).

12

b. Many lower courts, including the

D.C. Circuit here, improperly apply

Rule 12(b)(6) in rational basis cases

In affirming the dismissal of the Plaintiffs’

complaint, the D.C. Circuit made each of these errors.

For example, the Circuit Court repeatedly refused to

assume the truth of the Plaintiffs’ factual allegations,

concluding that degrees in education are by definition

relevant to caretaker competency, 45 F.4th at 397–98,

and that the Defendant could have “rationally

concluded that its college requirements would

improve the quality of childcare provided in licensed

facilities,” notwithstanding Petitioners’ substantial

and detailed allegations to the contrary, Complaint

¶¶ 94, 119−36, 123−26. The lower court ultimately

dismissed Plaintiffs’ claims because it weighed the

evidence and found, on its own judgment and in direct

contradiction to the allegations, that it was

implausible the legislature acted irrationally. 45

F.4th at 398 (challenged requirement is “selfevidently” rational). And although the court stated in

a conclusory manner that “pleading facts plausibly

showing a challenged policy’s irrationality will

adequately negate any rational explanation for the

policy so as to survive a motion to dismiss, without the

complaint’s needing to refute a laundry list of

potential justifications,” id. at 396, the court’s

analysis shows the falsehood of this claim, repeatedly

citing hypothetical justifications to support the

challenged provision.

The D.C. Circuit is far from alone in this approach.

Numerous other courts have made the same mistakes,

defying ordinary 12(b)(6) analysis to dismiss rational

13

basis claims without giving plaintiffs their day in

court. See, e.g., Midkiff v. Adams Cnty. Reg’l Water

Dist., 409 F.3d 758, 769−71 (6th Cir. 2005); Carter v.

Arkansas, 392 F.3d 965, 968−69 (8th Cir. 2004); Star

Sci., Inc. v. Beales, 278 F.3d 339, 349 (4th Cir. 2002);

Jones v. Temmer, 829 F. Supp. 1226, 1229, 1234−36

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

1995); Hettinga v. United States, 770 F. Supp. 2d 51,

54−55, 59–60 (D.D.C. 2011), aff’d, 677 F.3d at 479;

Mem. Op. & Order at 9−10, Truesdell v. Friedlander,

No. 3:19-cv-00066-GFVT-EBA (E.D. Ky. May 3, 2022),

ECF No. 120. These cases generally require plaintiffs

plead away every conceivable justification for a law in

order to survive a motion to dismiss.

This standard impacts real people who are simply

trying to earn a living and affects the perceived

fairness of the federal courts. In one case, litigated by

Amicus, Wilson-Perlman v. MacKay, No. 2:15-CV-285

JCM (VCF), 2016 WL 1170990, at *8 (D. Nev. Mar. 23,

2016), a district court dismissed a claim brought by a

woman who wished to expand the limousine business

she shared with her husband. The duo already

operated a successful business in Reno, and already

owned the vehicles that they sought to add to their

Nevada fleet. But they were denied, after being

protested by a competitor, without any regard to their

qualifications or safety record. The court denied the

plaintiffs

the

ability

to

seek

discovery,

notwithstanding allegations that the scheme served

no interest beside protectionism. Id. at *7. Instead,

the court held that the plaintiffs—somehow—needed

to affirmatively negate without the benefit of

discovery every single boilerplate justification recited

in the statutory purposes in order to overcome a

14

motion to dismiss. Id. at *8. The irony was that the

plaintiffs had moved from South Africa, lured by the

possibility of entrepreneurship.

c. Rational basis review, properly

understood, is not in tension with

the pleading standard—but courts

remain confused and divided

Using the understanding of the rational basis test

advanced by the D.C. Circuit, it is unclear how

plaintiffs could ever survive a motion to dismiss, much

less win their case. Under the D.C. Circuit’s analysis,

plaintiffs must prove—without the benefit of

discovery—that “no conceivable set of facts” could

exist which would support a challenged policy.

Sanchez, 45 F.4th at 396. But a clever government

lawyer will always be able to invent something

“conceivable,” putting plaintiffs in an impossible

bind. 2

Contrary to this understanding of the rational

basis test, this Court has repeatedly reversed

dismissals for failure to state a claim in rational basis

cases, emphasizing the importance of facts in the

rational basis analysis. See, e.g., Borden’s Farm Prods.

Co. v. Baldwin, 293 U.S. 194, 209 (1934) (“[W]here the

legislative action is suitably challenged, and a

2 Indeed, the Department of Justice has argued to the federal

courts that judges using federal rational basis would have to

uphold a law based on the theory that it is necessary to protect

the earth from “space aliens … in invisible and undetectable

craft.” See Oral Argument 34:37−35:27, Alaska Cent. Exp. Inc. v.

United States, 145 F. App’x 211 (9th Cir. 2005),

https://cdn.ca9.uscourts.gov/datastore/media/2005/07/13/0335902.mp3.

15

rational basis for it is predicated upon the particular

economic facts of a given trade or industry, which are

outside the sphere of judicial notice, these facts are

properly the subject of evidence and of findings.”);

Polk Co. v. Glover, 305 U.S. 5, 9−10 (1938) (plaintiff’s

allegations “were sufficient to entitle the plaintiffs to

an opportunity to prove their case, if they could, and

that the court should not have undertaken to dispose

of the constitutional issues (as to which we intimate

no opinion) in advance of that opportunity”); see also

Vill. of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)

(stating, when reversing dismissal for failure to state

a claim, that a plaintiff can prevail on a rational basis

challenge “quite apart from the [government’s]

subjective motivation”). Lower courts have followed

this lead on many occasions. Dias v. City & Cnty. of

Denver, 567 F.3d 1169, 1183−84 (10th Cir. 2009);

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

2d 1178, 1190−92 (N.D. Cal. 2011); Cornwell v. Cal.

Bd. of Barbering & Cosmetology, 962 F. Supp. 1260,

1276, 1278 (S.D. Cal. 1997); Tiwari v. Friedlander, No.

3:19-CV-884-JRW-CHL, 2020 WL 4745772, at *6

(W.D. Ky. Aug. 14, 2020); Munie v. Koster, No.

4:10CV01096 AGF, 2011 WL 839608, at *7−8 (E.D.

Mo. Mar. 7, 2011).

In spite of these cases emphasizing the importance

of facts, courts have described the interplay between

the rational basis test and Rule 12(b)(6) as

“confusing,” Baumgardner v. Cnty. of Cook, 108 F.

Supp. 2d 1041, 1055−56 (N.D. Ill. 2000), and

“perplexing.” Brown v. Zavaras, 63 F.3d 967, 971

(10th Cir. 1995). See also Giarratano, 521 F.3d at 303;

Wroblewski, 965 F.2d at 460; Brace v. Cnty. of

Luzerne, 873 F. Supp. 2d 616, 630 (M.D. Pa. 2012).

16

The source of this confusion is a small handful of

cases, outside the 12(b)(6) context, in which this Court

used unduly formalistic language to describe the

rational basis test. See, e.g., FCC v. Beach

Communications, Inc., 508 U.S. 307, 315 (1993)

(stating that rational basis challengers must negate

“every conceivable basis which might support” a

challenged policy and the government need not

provide any “evidence or empirical data” to justify

their decisions); Williamson v. Lee Optical of Okla.,

Inc., 348 U.S. 483, 488 (1955) (“It is enough that there

is an evil at hand for correction, and that it might be

thought that the particular legislative measure was a

rational way to correct it.”).

But Beach Communications and Williamson do not

fairly represent how the Court has applied the

rational basis test. For example, only a year after

Beach Communications, this Court ruled that “even

the standard of rationality as we so often have defined

it must find some footing in the realities of the subject

addressed by the legislation.” Heller v. Doe, 509 U.S.

312, 321 (1993) (emphasis added). See also Romer v.

Evans, 517 U.S. 620, 632−33 (1996) (“[E]ven in the

ordinary equal protection case calling for the most

deferential of standards, we insist on knowing the

relation between the classification adopted and the

object to be attained.”); City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432 (1985) (carefully reviewing

the record in a rational basis case).

This Court should grant cert in Petitioners’ case to

reject this formalistic approach and clarify the

application of the rational basis test in the 12(b)(6)

context. A proper test would ensure that challengers

17

who make specific, concrete allegations about a law’s

irrationality and demonstrate a plausible disconnect

between a law’s apparent purposes and its actual

impact can receive their day in court.

III.

This case is particularly important

because it indirectly implicates the

rights of parents to direct the care of

their children

Not only has the D.C. Circuit applied an overly

deferential rational basis test in the Rule 12(b)(6)

context to D.C.’s direct infringement of Petitioners

Sanchez and Sorchers’ right to earn a living, it has

also improperly applied this test to the regulations’

indirect infringement of Petitioner Homan’s

“fundamental right [as a] parent[] to make decisions

concerning the care, custody, and control of [her]

child[].” Troxel v. Granville, 530 U.S. 57, 66 (2000)

(citing “extensive precedent” recognizing the

fundamental nature of this right under the Due

Process Clause).

Parents have a fundamental right to choose whom

to entrust with their children’s upbringing. See, e.g.,

Pierce v. Soc’y of the Sisters of the Holy Names of Jesus

& Mary, 268 U.S. 510, 534 (1925); Meyer v. Nebraska,

262 U.S. 390, 403 (1923). Petitioner Homan has

asserted this right as a basis for her Fifth Amendment

Due Process claim. Complaint ¶ 242. D.C.’s

educational requirements for caregivers strongly

implicate this right by taking away parental choice

over what qualifications are sufficient to satisfy

parents’

trust.

Moreover,

the

requirements

irrationally and unnecessarily deny parents the

18

ability to entrust their children to affordable

caregivers in order to open time to work and provide

for their family.

This Court has recognized that “the Constitution’s

protection is not limited to direct interference with

fundamental rights. ... ‘Freedom ... [is] protected not

only against heavy-handed frontal attack, but also

from being stifled by more subtle governmental

interference.’” Healy v. James, 408 U.S. 169, 183

(1972) (quoting Bates, 361 U.S. at 523). See also

Patterson, 357 U.S. at 461 (freedom of association);

Thomas v. Review Bd. of Indiana Emp. Sec. Div., 450

U.S. 707 (1981) (freedom of religion); Att’y Gen. of New

York v. Soto-Lopez, 476 U.S. 898 (1986) (right to

migrate). In Bates, this Court held that city

ordinances

requiring

disclosure

of

NAACP

membership by custodians of local branch records, 361

U.S. at 517−19, directly violated these custodians’

freedom of speech. Id. at 527 (Black and Douglas, JJ.,

concurring). This direct violation, in turn, was an

indirect violation of other non-party NAACP

members’ right to freedom of association. Id. at 523.

See also id. at 523 n.9 (“The cities do not challenge ...

the right of the organizations in these circumstances

to assert the individual rights of their members.”).

In Petitioners’ case, D.C. has directly restricted

Petitioners Sanchez and Sorchers’ rights to earn a

living, and indirectly restricted Petitioner Homan’s

fundamental right to direct her child’s upbringing.

This Court has before “stressed that ... legislation ...

which on its face sought to regulate labor unions and

to secure stability in interstate commerce, would have

the practical effect ‘of discouraging’ the exercise of

19

constitutionally protected political rights.” Patterson,

357 U.S. at 461 (citing Am. Commc’ns Ass’n v. Douds,

339 U.S. 382, 393 (1950)). In other words, this Court

has recognized that economic regulation can

indirectly infringe upon “non-economic” rights. Some

lower courts have held that “[w]here the government

has only indirectly infringed upon a parent’s right, the

infringement will be ‘subject to minimum scrutiny.’”

T.W. by and through Waltman v. S. Columbia Area

Sch. Dist., No. 4:20-CV-01688, 2020 WL 5751219, at

*5 (E.D. Penn. Sept. 25, 2020) (quoting Angstadt v.

Midd-West Sch. Dist., 377 F.3d 338, 344 (3d Cir.

2004)). But as with direct infringements of the right

to earn a living, the rational basis test does not allow

courts to disregard the normal pleading requirements

of Rules 8 and 12 when plaintiffs allege that their

fundamental parental rights have been indirectly

infringed.

The D.C. Circuit recognized that a more direct

infringement of parental rights, such as “requir[ing]

parents to obtain associate’s degrees in earlychildhood education before supervising their kids’

friends would raise significant questions.” Sanchez, 45

F.4th at 400. Nonetheless, the Circuit Court failed to

recognize that there is no substantial difference

between a group of nine children’s parents entrusting

a neighborhood friend to watch the kids at the friend’s

house and the same group of parents entrusting

Petitioner Sanchez to watch their children at her own

house.

This case’s strong connection to these important

parental rights further emphasizes the importance of

20

the D.C. Circuit’s errors, and warrants the Court’s

involvement.

CONCLUSION

The right to earn a living protects ordinary people

who want only to improve their lives and their

communities. This right has been respected in AngloAmerican law since before the founding, but courts too

often ignore it, permitting widespread economic

protectionism and regulatory capture. The Court’s

confusing jurisprudence here has also begun to affect

fundamental civil procedure, preventing individuals

from even obtaining a day in court to defend their

rights. These rights are particularly important where,

as here, fundamental parental rights are strongly

implicated.

The Supreme Court should begin repairing this

damage and articulate standards which are more

protective of individual rights.

DATED: January 2023.

Respectfully submitted,

LAWRENCE G. SALZMAN

Counsel of Record

WILSON C. FREEMAN

Pacific Legal Foundation

555 Capitol Mall, Suite 1290

Sacramento, California 95814

Telephone: (916) 419-7111

LSalzman@pacificlegal.org

WFreeman@pacificlegal.org

Counsel for Amicus Curiae Pacific Legal Foundation