The danger of a Supreme Court that can find a 'rational basis' for any mandate

Anthony Sanders is an attorney at the Institute for Justice Minnesota Chapter, which litigates campaign finance cases nationwide. The institute describes itself as the nation's only libertarian public interest law firm.

What is most shocking about last month's ruling on the Affordable Care Act is not that the law was upheld but that any justices voted to uphold it. Lost in all the intrigue surrounding why Chief Justice John Roberts voted the way he did is that four other justices would have upheld the law's individual mandate — the requirement that all Americans purchase health insurance — under a view of the federal government's authority so sweeping that it would eliminate the Framers' carefully constructed plan of enumerated federal powers.

When the U.S. Supreme Court is one vote away from abandoning a basic safeguard for liberty, you know how precarious our system of federalism has become.

Robert's "half vote" — upholding the law under the federal government's tax power, but not under its power to regulate interstate commerce — was bad enough. But four other justices went even further and opined that Congress may regulate anything as long as there is a "rational basis" to believe that what is being regulated affects interstate commerce.

Because health insurance is a commercial product, goes the argument, Congress can compel individuals to purchase it since doing so is "rationally related" to "interstate commerce." Thus, even though not purchasing health insurance is (undeniably) not interstate commerce, the federal government can force individuals to buy it because of a "rational" relationship between not buying it and actually buying it. In other words, the opposite of commerce is rationally related to commerce. The same would be true of not buying any product, or even any service. My not buying a car affects the interstate market of cars. If Congress feels there is a problem with insufficient demand for cars, it could require me to purchase one because of the "rational" relationship between my choice not to buy a car and interstate commerce.

This "rational basis test" crops up in many other areas of constitutional law as well. Every time it does, be warned: It means the court is fixing the game for the government to win. When an entrepreneur tries to protect his own right to earn a living from useless regulations, the government wins whenever its regulation — no matter has silly — is "rationally related" to public health and safety.

A few years ago a federal judge upheld the constitutionality of a Louisiana law that requires a state license to arrange and sell flowers. The law was transparently anticompetitive but the judge upheld it because, in part, it might — just might — protect the public from infected dirt. This despite consumers in the other 49 states doing just fine with the totally unproven infected dirt menace.

Another example of the "rational basis test" came when the Supreme Court allowed the city of New London, Conn., to take Susette Kelo's home through eminent domain and give it to a private developer. The court said there was a "rational basis" to think the city would be better off if it demolished a neighborhood and turned the land over to a developer who might build fancier houses that would yield higher tax revenues. Seven years later, that "rational basis" has turned out to be as irrational as they come. The developer pulled out of the project, and where a long-established neighborhood once stood there is now a 90-acre vacant lot full of storm debris and seagulls.

Instead of applying a "test" that allows them to stop thinking, judges should instead simply engage with the issue before them and not reflexively defer to those supposed wizards of rationality in Congress, state legislatures and city councils. Judges know how to do this. It's called "judging." And it's entirely rational.

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