Meghan Boone (Wake Forest University School of Law) has posted Perverse & Irrational (Harvard Law & Policy Review, Vol. 16, 2022) on SSRN. Here is the abstract:
In our system of representative democracy, legislatures are given a great deal of latitude to select and pass laws that they deem to be in the public interest. Assuming that no suspect class or fundamental right is involved, the Constitution has been interpreted to only require legislative action to satisfy rational basis review—a highly deferential standard that requires only that a legitimate purpose exist and the means adopted to achieve that purpose are rationally related to that purpose. Under rational basis review, legislatures can and do enact laws that are significantly over- or underinclusive to the identified problem. They can enact laws that do not even accomplish their intended purpose in most instances. They can even enact laws which are unsupported by any evidence, much less high-quality evidence. And yet . . . courts insist that rational basis review still means something. That it is something other than a blank check for legislatures to do as they will.
This Article explores one example of the outer bounds of rationality—demonstrated perversity. That is, a law that clearly contravenes the overarching legislative intent because the law is solely or primarily responsible for producing the opposite result of that intent. Although often unnamed as such, perversity presents itself across the legislative landscape, from mundane local ordinances to sweeping federal legislation. And while not explicitly recognized as a basis for finding a law unconstitutional, Supreme Court precedent clearly hints at the possibility that demonstrated perversity could be a basis for invalidating laws.
By defining perversity, identifying when and how it occurs, and exploring how it might be used to challenge the constitutionality of various government actions, this Article aims to illuminate an undertheorized corner of the already robust literature on rational basis review. It argues that current rational basis review precedent already employs a type of perversity analysis, although courts fail to explicitly acknowledge it as such. Moreover, it argues that modern changes in scientific and empirical methodologies and the explosion of the information economy demonstrate the need for this type of analysis; without it, rational basis review is meaningless. Ultimately, the Article concludes that while rational basis scrutiny gives legislatures wide latitude, courts must set a constitutional limit by striking down statutes which cause outcomes clearly counterproductive to legislative goals.
Highly recommended.
