FIU Law Review FIU Law Review
Volume 11
Number 2
Separation of Powers
Article 14
Spring 2016
Aging Disgracefully: Do Economic Laws Remain Rational in Spite Aging Disgracefully: Do Economic Laws Remain Rational in Spite
of Changed Circumstances? of Changed Circumstances?
Johanna Talcott
Florida International University College of Law
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Online ISSN: 2643-7759
Recommended Citation
Johanna Talcott,
Aging Disgracefully: Do Economic Laws Remain Rational in Spite of Changed
Circumstances?
, 11 FIU L. Rev. 495 (2016).
DOI: https://dx.doi.org/10.25148/lawrev.11.2.14
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Aging Disgracefully: Do Economic Laws Remain
Rational in Spite of Changed Circumstances?
Johanna Talcott
*
I
NTRODUCTION
Rational basis review—especially as it applies to economic
regulation—needs a little more bite. Many scholars, practitioners, and
judges have critiqued the Supreme Court’s unfavorable treatment of
economic liberties and the highly deferential nature of its lowest standard of
review.
1
Some have advocated for changes in the Court’s approach to both,
such as bulking up the scrutiny of rational basis review or eliminating
distinctions between constitutional rights.
2
While such calls are well-
founded and forceful, it is unlikely that there would be any substantial
overhaul of nearly a century of firmly established constitutional
jurisprudence.
3
An alternative method is that the courts can implement
*
J.D. candidate, May 2016, Florida International University College of Law; M.A., The
Pennsylvania State University; B.A., University of Florida. I owe a tremendous debt of gratitude to
Dominique Pando Bucci, Jeremy Talcott, and Bryan Wilson for their help with this endeavor.
1
See, e.g., Hettinga v. United States, 677 F.3d 471, 480–83 (D.C. Cir. 2012) (Brown, J.,
concurring); Patel v. Texas Dep’t of Licensing and Reg., 469 S.W.3d 69, 98–99 (Tex. 2016) (Willett, J.,
concurring); Randy E. Barnett, Scrutiny Land, 106 M
ICH.L.REV. 1479 (2008); Aaron Belzer, Putting
the “Review” Back in Rational Basis Review, 41 W.
S
T.U.L.REV. 339 (2014); Marc P. Florman, The
Harmless Pursuit of Happiness: Why “Rational Basis with Bite” Review Makes Sense for Challenges to
Occupational Licenses, 58 L
OY.L.REV. 721 (2012); Elizabeth Price Foley, Judicial Engagement,
Written Constitutions, and the Value of Preservation: The Case of Individual Rights, 19 G
EO.MASON L.
R
EV. 909 (2012); Jessica E. Hacker, The Return to Lochnerism? The Revival of Economic Liberties from
David to Goliath, 52 D
EPAUL L. REV. 675 (2002); Clark Neily, No Such Thing: Litigating Under the
Rational Basis Test, 1 NYU
J.L. & L
IBERTY 898 (2005); Note, Resurrecting Economic Rights: The
Doctrine of Economic Due Process Reconsidered, 103 H
ARV.L.REV. 1363 (1990); Austin Raynor,
Economic Liberty and the Second-Order Rational Basis Test, 99 Va. L. Rev. 1065 (2013); Timothy
Sandefur, Equality of Opportunity in the Regulatory Age: Why Yesterday’s Rationality Review Isn’t
Enough, 24 N.
I
LL.U.L.REV. 457 (2004); Timothy Sandefur, The Right to Earn a Living, 6 CHAP.L.
R
EV. 207 (2003); Neelum J. Wadhwani, Rational Reviews, Irrational Results, 84 TEX.L.REV. 801
(2006).
2
Some scholars have advocated for shifting the burden of proof back onto the government in
rational basis review cases. See, e.g., Belzer, supra note 1, at 373 (proposing a “rationale review
standard” for all nonsuspect class equal protection challenges, in which a successful prima facie case of
an inappropriate classification would shift the burden on the government to justify the rationale behind
the classification); Foley, supra note 1, at 927 (advocating for a return to the “old-school rational basis
review” utilized by the pre-New Deal Supreme Court, which required the government to “prove a close
fit between the means chosen and the purpose of the law”). Cf. Barnett, supra note 1, at 1499–1500
(advocating for elimination of the fundamental/non-fundamental rights dichotomy under due process in
favor of a “presumption of liberty” that is generally rebuttable by the government).
3
See Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 VA.L.REV. 1,
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496 FIU Law Review [Vol. 11:495
minor doctrinal approaches, which comport with existing Supreme Court
jurisprudence, but incrementally shift the law towards strengthened judicial
scrutiny and greater preservation of economic liberty—sort of a “rational
basis review with nibble.”
4
One such modest approach is the changed
circumstances doctrine.
5
When courts adjudicate legislation that impacts economic liberty, the
applicable level of scrutiny, rational basis review, requires only that the
government articulate a legitimate government interest (and if not, the court
can even conceive of one) and assert that the law is a rationally related
means of achieving that interest.
6
Challenged legislation is afforded an
extremely strong presumption of constitutionality and the courts have no
obligation to conduct any fact-finding whatsoever into the rationality of the
government’s actions.
7
In order to prevail, a challenger must essentially
prove that every conceivable reason that the legislature may have had in
passing the legislation is irrational.
8
In practice, this is a nearly
insurmountable task.
9
For example, the Supreme Court sided with the
plaintiffs in only ten out of one hundred rational basis review cases between
1973 and 1996.
10
By the Court’s logic, all of those challenged laws were
constitutionally rational.
But does a law remain rational indefinitely? Given the rapid clip of
social and technological change––and the notorious lag of government––
1–4 (2001); see also Foley, supra note 1, at 927.
4
The author cannot locate any other instances of this phrase being used, but it seems an
appropriate descriptor for an approach that does not substantively disrupt established law or doctrine and
applies only in a relatively narrow range of cases.
5
See discussion infra pages 506–523.
6
See, e.g., FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313–15 (1993); Heller v. Doe, 509 U.S.
312, 319–20 (1993). In equal protection cases, the Court applies rational basis review in challenges to
legislation that distinguishes between economic or social classes (nonsuspect classes). Strict scrutiny is
reserved for legislation that distinguishes between suspect classes (race, national origin, and alienage) or
burdens a fundamental right, and intermediate scrutiny for legislation that distinguishes between quasi-
suspect classes (gender, illegitimacy). In substantive due process cases, the Supreme Court bifurcates
individual liberties into fundamental and non-fundamental rights. Fundamental rights are those which
are “objectively, deeply rooted in this Nation’s history and tradition, and implicit in the concept of
ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Washington v.
Glucksberg, 521 U.S. 702, 720–21 (1997).
7
Beach Commc’ns, 508 U.S. at 315 (“[A] legislative choice is not subject to courtroom fact-
finding and may be based on rational speculation unsupported by evidence or empirical data.”).
8
Heller, 509 U.S. at 320 (“A statute is presumed constitutional and the burden is on the one
attacking the legislative arrangement to negative every conceivable basis which might support it.”)
(citations and quotations omitted).
9
See Gerald Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model
for a Newer Equal Protection, 86 H
ARV.L.REV. 1, 8 (1972) (describing rational basis review as
“minimal scrutiny in theory and virtually none in fact”).
10
Robert C. Farrell, Successful Rational Basis Claims in the Supreme Court from the 1971 Term
Through Romer v. Evans, 32 I
ND.L.REV. 357, 416 (1999).
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2016] Aging Disgracefully 497
laws and regulations risk becoming outdated as the factual circumstances
that justified their enactment begin to disappear.
11
Governments prudently
leave many outdated laws unenforced, such as the Pennsylvania statute that
requires motorists to stop every mile on rural roads to send up rocket
signals, the Michigan law that prohibits a married woman from going to the
hair stylist without her husband’s permission, or the ban on Sunday yo-
yoing that is on the books in a handful of states.
12
With economic regulation, however, governments may continue to
enforce laws even after drastic changes in factual circumstances render
them obsolete. This might be the case, for example, when some new
product, business model, or innovation emerges that the legislature could
not have anticipated and did not account for in the existing regulatory
framework.
13
Established businesses, which have often invested
considerable costs to operate under existing regulations, are understandably
frustrated when their competitors are not bound by the same restrictive and
expensive rules.
14
Governments often respond by continuing to enforce the
outdated regulations, or requiring indirect competitors to comply with
existing regulations, even when doing so verges on the absurd.
15
11
A cursory Google News search suggests that this is a fairly common feature throughout the
world. See, e.g.,Kathleen Gray, Michigan Laws in Crosshairs: Don’t Cuss, Dye Chicks, USA
T
ODAY
(Mar. 24, 2015), www.usatoday.com/story/news/nation/2015/03/24/mich-laws-crosshairs-cuss-dye-chic
ks/70404872; Tiffany Owens, Ala. Legislators Seek to Repeal Antiquated Laws, C
ULLMAN TIMES (Mar.
17, 2015), www.cullmantimes.com/news/ala-legislators-seek-to-repeal-antiquated-laws/article_a0619e4
2-cc47-11e4-91d5-af3fc27c9839.html; Jane Walsh, Ireland to Revoke 5,782 Outdated Laws, I
RISH
CENT. (Mar. 17, 2015), www.irishcentral.com/news/Ireland-to-revoke-5782-outdated-laws.html.
12
Stephanie Morrow, Top Craziest Laws Still on the Books, LEGAL ZOOM (Oct. 2009),
www.legalzoom.com/articles/top-craziest-laws-still-on-the-books.
13
See Erica Taschler, A Crumbling Monopoly: The Rise of Uber and the Taxis Industry’s
Struggle to Survive, L
OY.SCH L.: NEWS AND VIEWS (June 2015), www.luc.edu/media/lucedu/law/cen
ters/antitrust/pdfs/publications/newsviews/Erica%20Taschler%20New%20%20Views%20With%20Edit
s%20%20Footnotes.pdf.
14
See id. The government shares in the frustration when businesses find ways to lawfully
circumvent the rules. See, e.g., Hettinga v. United States, 677 F.3d 471 (D.C. Cir. 2012); see also Dan
Morgan, Sarah Cohen & Gilbert M. Gaul, Dairy Industry Crushed Innovator Who Bested Price–Control
System, W
ASH.POST (Dec. 10, 2006), www.washingtonpost.com/wpdyn/content/article/2006/12/09/AR
2006120900925.html.
15
For example, one rule in an arcane web of Pennsylvania funeral industry regulations prohibits
the serving of food or intoxicating beverages at a funeral home. The Third Circuit upheld the regulation,
which dated back to the fifties. Heffner v. Murphy, 745 F.3d 56, 86 (3d Cir. 2014), cert. denied, 135 S.
Ct. 220 (2014); see also Patel v. Texas Dep’t of Licensing and Reg., 469 S.W.3d 69, 73–74 (Tex. 2016)
(evaluating a requirement for eyebrow threaders to obtain expensive and time-consuming cosmetologist
licenses). Cf. N.C. State Bd. of Dental Exam’rs v. FTC, 135 S. Ct. 1101 (2015) (involving a prohibition
against non-dentists from performing simple teeth whitening procedures). Unfortunately, governments
seldom respond to these conflicts by lifting the burdensome regulations for everyone. One recent
example is the dispute in Austin, Texas, over Uber and Lyft refusing to abide by background check
requirements imposed on taxi drivers. The popular ride-sharing services ultimately departed the city. See
Jared Meyer, What Elizabeth Warren Gets Wrong About Uber, R
EASON (May 23, 2016),
www.reason.com/archives/2016/05/23/what-elizabeth-warren-gets-wrong-about-u; see also J.D. Tuccille,
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498 FIU Law Review [Vol. 11:495
The Supreme Court contemplated that factual circumstances could
change enough to render continued enforcement of a law irrational. In the
seminal case United States v. Carolene Products, the Court was clear that
“the constitutionality of a statute predicated upon the existence of a
particular state of facts may be challenged by showing to the court that
those facts have ceased to exist.”
16
This changed circumstances doctrine
requires courts to evaluate the rationality of a law with regard to the
objective factual circumstances existing when the law is challenged, rather
than when it was enacted. The Court never overruled Carolene’s mandate
17
and consistently gives weight to changed factual circumstances in other
areas of constitutional law.
18
Nevertheless, lower courts have diverged over
whether and how to account for changed factual circumstances in rational
basis review.
19
Those courts that have deviated from Carolene’s rule have
focused on practical concerns and a perceived ambivalence from the
Supreme Court on the issue.
20
This comment argues that courts that have abandoned the changed
circumstances doctrine in rational basis review have gotten it wrong. A law
must pass constitutional muster not only when enacted but also when
enforced––holding otherwise could effectively put an expiration date on
constitutional rights. The changed circumstances doctrine is an essential
component of rational basis review that, if employed consistently, serves as
a much-needed judicial limit on economic regulation. This comment first
reviews the history of the Supreme Court’s development of rational basis
review and declining protections for economic liberty. It then examines
After Winning Regulatory Battle Against Ride-Sharing Firms, Austin Turns to Black Market and
Deregulation, R
EASON (May 31, 2016), www.reason.com/archives/2016/05/31/after-winning-regulatory-
battle-against.
16
United States v. Carolene Prods. Co., 304 U.S. 144, 153 (1938).
17
The Supreme Court has never had the opportunity to directly address the issue of whether a
law’s constitutionality must be evaluated with regard to the facts in existence at the time the law is
challenged—all of the one hundred and fifty rational basis review cases to reach the Supreme Court in
the seventy-eight years since Carolene were challenges to recently enacted legislation. Petition for Writ
of Certiorari at 14, Heffner v. Murphy, 135 S. Ct. 220 (2014) (No. 14-53), 2014 WL 3530761, at *14
[hereinafter Heffner v. Murphy Petition].
18
E.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Shelby Cnty. v. Holder, 133 S. Ct. 2612
(2013).
19
Courts’ analyses of changed circumstances have cut across several areas of constitutional law
and all levels of judicial scrutiny. See, e.g., Allison Orr Larsen, Do Laws Have a Constitutional Shelf
Life?, 94 Tex. L. Rev. 59 (2015); Maria Ponomarenko, Changed Circumstances and Judicial Review, 89
N.Y.U.
L. R
EV. 1419 (2014); Sean G. Williamson, Contemporary Contextual Analysis: Accounting for
Changed Factual Conditions Under the Equal Protection Clause, 17 U.
P
A.J.CONST.L.591 (2014).
20
E.g., Burlington N. R.R. Co. v. Dep’t of Pub. Serv. Reg., 763 F.2d 1106 (9th Cir. 1985)
(finding that circumstances had not sufficiently changed to make regulation unconstitutional); Dias v.
City & Cnty. of Denver, 567 F.3d 1169 (10th Cir. 2009) (permitting a due process claim to proceed on a
theory of changed circumstances).