For the first time in decades, lower appellate courts have struck down economic legislation as lacking a rational basis. (1) These cases likely reflect a growing concern that many occupational licensing regimes have become a barrier to social and economic inclusion. This view is not limited to the right side of the political spectrum. (2) The combination of judicial decisions and policy concerns prompts anew the question of whether the Supreme Court's very lenient review of economic legislation is sound as a constitutional matter.
This short essay unpacks that issue because it is not a single question but many. Such unpacking also allows us to get closer to an originalist view of the proper standard of review, because "rational basis"--the term now used to describe review of economic legislation--does not appear in the Constitution. The phrase thus cannot be the starting point of an originalist analysis.
This essay suggests that the original meaning of the Fourteenth Amendment likely requires more searching judicial review of economic legislation, particularly occupational licensing, than the post-New Deal consensus provides. The Amendment not only prohibits legislation with solely a protectionist rationale but also requires legislation that substantially harms economic prospects to have a bona fide police power rationale, such as one advancing health or safety.
The appropriate scope of judicial review in this area involves both procedural and substantive aspects. The procedural aspect of judicial review focuses on such issues as who has the burden of proving that legislation has a police power rationale and the somewhat related question of whether courts can hypothesize reasons for the legislation that the legislature did not put forward. The substantive question focuses on what provision in the Constitution authorizes invalidation of economic legislation and what standard of review it provides.
The procedural issues have clear answers that derive from the nature of judicial review and the structure of litigation. Briefly, those challenging a regulation must shoulder the burden of showing that the regulation fails to meet the constitutional standard because judicial review itself requires the judges to come to a clear view that legislation is unconstitutional before invalidating it. But this presumption is a relatively weak one. Its nature is jurisprudential and not based on the claim that the legislature is better at finding social facts than the courts. Thus, if the courts can use their traditional methods for finding facts and come to a firm conclusion that the legislation is not supported by the rationale and/or factual predicate that the Constitution requires, they should invalidate the legislation.
This presumption is also consistent with putting the burden of production on the government in the course of litigation because the government likely has better access to...