Rational basis "plus".

Author:Nachbar, Thomas B.


The Supreme Court has asserted the power to review the substance of state and federal law for its reasonableness for almost 200 years. (1) Since the mid-1960s, that review has taken the form of the "familiar 'rational basis' test," (2) under which the Court will strike a statute if it is not rationally related to a legitimate governmental interest. (3) The test is hardly perfect. It lacks, for one thing any textual basis in the Constitution. (4) It has been criticized from both ends, as alternatively a judicial usurpation of legislative power (5) or "tantamount to no review at all." (6) But the Court has applied it for decades, (7) and while the test is not universally loved, neither is it particularly controversial, at least as rules of constitutional law go.

If rational basis scrutiny itself is largely uncontroversial, the same cannot be said for so-called "rational basis with bite," "rational basis with teeth," or--as I shall call it--"rational basis plus" review. (8) Rational basis plus is, as Justice O'Connor describes it, a "more searching form of rational basis review." (9) The Court has never acknowledged its existence, and Justice Scalia explicitly denied it. (10) But lower courts (11) and scholars (12) have repeatedly identified it, noting a sub-set of cases in which the Court purported to apply rational basis scrutiny but in actuality applied something else--even Justice Scalia eventually relented, conceding the Court was applying a different form of review without explicitly elevating scrutiny above rational basis review. (13)

Identifying instances of the rational basis plus test, what triggers it, and what it consists of has been the subject of much academic sport, increasingly so as the Court has applied the test to a series of cases touching on the hot-button issue of sexual orientation, including Romer v. Evans (14) and United States v. Windsor (15) Such efforts have borne little fruit in the form of increased understanding. A doctrine that the Court does not acknowledge requires neither a justification nor an underlying theory, rendering inquiry into either the equivalent of a constitutional snipe hunt, and about as productive.

We should be deeply suspicious of a doctrine the Court has not acknowledged applying, none more so than rational basis plus. Rational basis plus lends itself to obfuscation as practically no other doctrine can, in part because it purports to be an application of "rationality," which is a nearly universally appealing concept. (16) Close examination of the case that gave birth to the doctrine--United States Department of Agriculture v. Moreno (17)--shows how easily rational basis plus can be applied disingenuously. In deciding the case, Justice Brennan applied a standard of rationality far exceeding that demanded in an ordinary case. He was able to do so because, although rationality claims to be objective, a claim of irrationality is not objectively falsifiable. Study of the process by which Moreno and its companion case, United States Department of Agriculture v. Murry, were decided, demonstrates not only that rational basis plus can be used to import fundamental rights conceptions through the language of rationality, but also that Moreno itself was decided on exactly that basis. Far from an exercise in rationality, Brennan's opinion in Moreno was an attempt to justify a result driven by approaches to fundamental rights that were, for one reason or another, unavailable to him as articulable bases for the decision.

Recognizing both the impetus for rational basis plus and its unparalleled suitability to the to the task of justifying results driven by other approaches demonstrates just how truly exceptional and problematic the standard is. Lacking an articulated basis in principle, rational basis plus is impossible to either apply or constrain in a principled way. That is not to say that we should throw the rationality baby out with the bath water. Understanding how Moreno was decided both supplies a framework for understanding how this unspoken doctrine operates--by using rationality in an exclusive rather than an inclusive sense--and provides a guide for conducting rational basis scrutiny without the problematic aspects of rational basis "plus."

Acknowledging the dangers of rationality review also offers newfound justification for the Court's oft-maligned "tiered" approach to scrutiny. (18) Although frequently criticized, the tiered approach to scrutiny is valuable for providing exactly the kind of moral and legal accountability that rationality does not. While rationality purports to be objective, the tiers of scrutiny are themselves acknowledged to be contingent--no one thinks that nature or logic requires a particular form of scrutiny for any particular type of legislation. By forcing the Court to choose among the tiers of scrutiny, we force it to provide a justification for its choice--exactly the kind of justification it avoids by relying on rationality to strike statutes that it believes are problematic for other reasons.

The paper proceeds by describing the issues at play in Moreno and Murry before delving into the process by which they were decided. Reference to the Justices' internal communications, along with Justice Brennan's notes, demonstrates a set of related concerns about the two cases. Justice Douglas was originally slated to author Moreno and Brennan took over only when Douglas's chosen approach proved more than the rest of the Court would accept. But Brennan's first approach to the case--to strike the statute on "morality" grounds--did not fit the case as argued, and only then did he turn to rationality as the basis of the decision. After discussing that shift in justification for Moreno itself, the paper considers the implications of Moreno, and process of its decision, for the Court's rational basis "plus" jurisprudence.



In 1964, Congress passed the Food Stamp Act as part of Lyndon Johnson's Great Society Program. (19) Congress laid out the Act's purposes in the act itself, connecting social welfare with agricultural policy to "safeguard the health and well-being of the Nation's population and raise levels of nutrition among low-income households... promote the distribution in a beneficial manner of our agricultural abundances and [] strengthen our agricultural economy, as well as result in more orderly marketing and distribution of food." (20)

In 1971, Congress amended the Food Stamp Act to restrict food stamp benefits by redefining an eligible "household" as one in which all the residents were related. (21) Several food stamp recipients who would be denied benefits under the new definition sued, including Jacinta Moreno, a 56-year diabetic requiring special food and medical care who lived with Ermina Sanchez, who was, even without caring for Ms. Moreno, poor enough to qualify for both public assistance and food stamps for her and her three children. Under the change, both Moreno and Sanchez (and Sanchez's children) would be denied assistance because Moreno was unrelated to Sanchez but living in Sanchez's home. (22)


The Court, following the three-judge district court, rejected any rational relationship to the stated congressional ends, since familial status is irrelevant to both one's own nutritional needs and one's ability to stimulate the agricultural economy in satisfying them--the two statutory purposes. (23) At first blush, this seems unexceptional; people almost certainly eat (and likely buy) the same amount of food whether they're related to their roommates or not. That approach does raise the question of whether each provision of a statute must individually further the entire program's stated end. As the government argued, welfare programs necessarily entail choices among priorities, necessitating some exclusion. (24) Any provision limiting the scope of the food stamp program would not directly further either of the stated legislative ends; it would do so only indirectly by making possible the parts of the food stamp program that do. (25)

Rational basis scrutiny doesn't require a rational relationship to the legislative end, though--it requires a relationship to any conceivable end, and so the government offered two ends in its brief, both related to the prevention of abuse of the program: First, the government argued that Congress could rationally conclude that the program was more likely to be subject to moral hazard by non-related cohabitants who chose to "remain voluntarily poor" while living off of food stamps, citing the example mentioned in the legislative history of college fraternities or "other collections of essentially unrelated individuals who voluntarily chose to cohabit and live off food stamps." (26) Similarly, households of non-related individuals, the government argued, were more likely to have financial support from outside the household, rendering them not really "poor at all." (27) (College students again come to mind, although the government didn't argue that.) Second, the government argued that Congress could have concluded that households with unrelated persons in them are "[more] fluid living arrangements having little stability over time." (28) Such households present challenges to the administration of the food stamp program, since the information the Department of Agriculture required to determine eligibility would be harder to obtain and maintain. It was rational, the government argued, that Congress could respond to the increased cost of "eligibility surveillance" by choosing not to make such households beneficiaries of the program. (29)

Justice Brennan's majority opinion rejected the rationality of the government's abuse-based justifications by demonstrating that, because fraud was still possible after the changes, (30) "the classification here in issue is not only 'imprecise,' it is wholly without any rational basis,"...

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