As an example, the price of oil went from about $147 to a little over $30 in a few months last year. From the point of view of an anti-market observer unable to get legislatures to adapt government-set pricing and wishing to use the courts to achieve this goal, this and many similar examples provide lots of low-hanging fruit opportunities. Just go into court, give the two different prices and the two dates, explain that neither the supply not the societal demand for oil changed in this period remotely enough to rationally justify such a disparity, and ask the court to strike government’s acceptance of markets as a basis for pricing and hold the Due Process Clause requires using a rational, i.e. government-set, pricing basis. Low-hanging fruit like this abounds in every functioning complex system; it’s very easy for a person fundamentally opposed to the system’s basis to find low-hanging fruit which could serve as a basis for striking the system down in part if not in whole.

The reason libertarians find outlawing selling bone marrow irrational is that they find outlawing market approaches irrational, and if one comes in from that perspective one can find a place where a compromise results creates an anomaly. The difficulty is that market-based approaches, like the pricing example above, contain similar anomalies: if one doesn’t like markets, one will think the market price irrational quite often, and sometimes obviously and irksomely so.

So a little thought shows that the very principle market supporters propose to use to justify requiring markets could, if applied fairly and neutrally, equally well be used to justify banning them. If one wants markets to be considered constitutional, one has to have a concept of “rational basis” sufficiently flexible to accommodate the fact that markets sometimes produce anomalous-seeming results, as last year in particular has demonstrated. A concept of “rational basis” cautious enough to avoid destroying markets will probably be cautious enough to avoid destroying this law.

Given two judges, one tolerant of others’ views and one convinced of his superiority and inclined to belief that anyone who disagrees with him is an idiot, the standard gives the second all the power. Judges have no incentive whatsoever to be tolerant or respectful of others’ views. The more narrow-minded they are, the less capable of seeing those who disagress with them as possibly making sense, the more power they have.

Do we really want a system that selects for the most bigoted and self-centered and makes them all-powerful?

Malvolio: A person who needs marrow would certainly feel discriminated against compared to person who needs blood. Of course, that every distinction in law eventually affects one person more than some other person, so my interpretation would expand “equal protection” to mean “every law must make sense” and we can’t have that…

Who do you want o decide if every law “must make sense”? Legislators, or judges?

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)
Other than a throwaway to Cleburne, and that it affirms (in general) that it doesn’t withstand rational basis scrutiny under the 14th Am., I don’t see it as actually being about the EPC as distinct from SDP. The court treats them the same. In addition, this reasoning is explicitly rejected by other courts (see the 10th Cir.).

The Cornwell v. Hamilton case, as I remember, also had to do with disparate impact on minority hairdressers… but I can’t find the cite for that.

Can’t look up the last case, and won’t bill a client for that. *smile*

So, what do we have?

1. Courts that confuse SDP and EPC rational basis analysis, and just kind of toss them together.
2. A few outlier decisions that bootstrap Romer and Cleburne, and are explicitly rejected in other jurisdictions.
3. An interesting tension, from my point of view, between conservatives who wish to overthrow democratically elected laws, and those that do not want to bother with them even if they are “uncommonly silly”.*

Still, I asked and you answered. Thank you!

*This tension is the same for liberals, except you replace economic liberties with civil liberties.

readery: Last time I read it the Equal Protection Clause protects persons, not body organs. Unless there’s a claim that persons are being treated differently, there’s no equal protection claim. It simply doesn’t cover every distinction the complainer happens not to like, only distinctions between persons

A person who needs marrow would certainly feel discriminated against compared to person who needs blood. Of course, that every distinction in law eventually affects one person more than some other person, so my interpretation would expand “equal protection” to mean “every law must make sense” and we can’t have that…

Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002)
Cornwell v. Hamilton, 80 F. Supp.2d (S.D. Cal. 1999)
Brown v. Barry, 710 F. Supp. 352 (D.D.C. 1989) (litigated by IJ co-founder Clint Bolick shortly before IJ’s creation)

IJ typically asserts both substantive due process and equal protection claims in rational basis cases because some judges just cannot seem to get their minds around the equal protection approach, whereas other judges either can’t get their minds around or simply reject outright the whole concept of substantive due process. But the case law makes clear that the standard of review is the same either way, so it’s really a matter of giving the judge different ways of looking at the same basic problem — legislation so obviously devoid of any genuine public policy justification that even the courts will not put up with its stink. And that’s pretty stinky.

As Judge Boggs said (quoting another Sixth Circuit case) in striking down a Tennesse casket sales law in Craigmiles, the state’s justifications “come close to striking us with the force of a five-week-old, unrefrigerated dead fish, a level of pungence almost required to invalidate a statute under rational basis review.”

There are obvious rational bases for treating the two differently. There are arguments for a completely market-based approach and arguments for keeping the market completely out of human tissue donations. Congress compromised between these two different ideologically pure approaches to the issue. Compromises are essentially always rational whenever both sides have a point. It doesn’t matter where in the middle Congress happened to draw the line — compromise involves drawing a line, the line has to be somewhere, and whenever there’s a line someone can always make a case that it would make more sense for the line to be an inch to the right or the left.

The complaint suffers from place the issue in a two-point context – Congress’ approach vs. the complaintants preferred approach, presented as if these were the only two possible approaches in the universe. One can virtually always find an approach that can be presented as more rational than the law in the current state. But placed in a different context, it is easy to see it as a compromise between two different ideologies, and in that context it is obviously rational.

One could make a case that making the speed limit 40 vs. 30 would result in greater convenience or a lower accident loss respectively and then claim the other approach is irrational. But once one realizes that every speed limit represents some imperfect compromise between convenience and safety, then it becomes clear that every speed limit is rational. Judges have no more basis for saying where the line should be than legislators. Same with the line Congress drew for human tissue donations.

Debauched Sloth: The critiques of the plaintiffs’ claims, especially equal protection, is amusing. Like listening to a bunch of National Guardsmen critiquing a boat crew of SEALs on their surf landing technique. Out of curiosity, have any of the critics actually litigated an equal protection challenge under rational basis review? IJ specializes in it. Doesn’t make them right of course, but it’s probably safe to assume they have a pretty good idea what they’re doing, no?

Please point me to their victories in litigation under rational basis using the EPC. I’m not saying this to be snarky- I’d really like to know. I looked at the complaint, and other than saying that it is arbitrary and capricious, I’m not seeing any meat (or marrow) to it.

Debauched Sloth:
Debauched Sloth says:
The critiques of the plaintiffs’ claims, especially equal protection, is amusing. Like listening to a bunch of National Guardsmen critiquing a boat crew of SEALs on their surf landing technique.

Point taken.

Not that I don’t appreciate the Institute for Justice for their intentions (although, as has been pointed out, the execution is less than inspiring), but I feel like we could do much more and better exploring more unconventional options.

because Dems and Repubs both worry about the implications for social morality, but the Dems worry about materialism and over-commodification and the Repubs worry about degrading the value of life [understood in a certain way].

I think that’s an accurate description of Republicans’ concerns, but I don’t think it’s quite apt with respect to the Democrats’. To wit: I don’t think Democrats give a hoot about materialism and over-commodification; rather, I think they’re worried that a market for organs would produce outcomes that they didn’t approve of, such as a wealthy lifelong smoker getting a lung transplant ahead of Little Suzie afflicted with cystic fibrosis.

A lawyer realizes that you just can’t say “Equal Protection” and have the government treat everything the same. Ask a 5 year old why they can’t get a driver’s license. Ask a traveler why they can’t carry more than 5oz container on an airplane. Ask someone who makes $100,000 why some of their money is taxed differently than other parts of their money.

Harrumph. Government has to make choices. Only some choices are “bad” ones that violate equal protection.

Answer: Because (a) Democrats are instinctively hostile to market solutions despite the countless lives lost as the predictable result of artificial shortages that laws like NOTA produce; and (b) Republicans think that it’s just a short jump from repealing NOTA to some Gattaca-esque dystopia where we raise clones for organ harvesting.

Simpler answer:

because Dems and Repubs both worry about the implications for social morality, but the Dems worry about materialism and over-commodification and the Repubs worry about degrading the value of life [understood in a certain way].

loki13: Uh, I agree with Steve here. How’s this– this here law violates equal protection, cuz it treats fishin’ licenses like huntin’ and wrasslin’ licenses. Everyone knows fishin’ and huntin’ and wrasslin’ go together. That’s just arbitrary what the gummint’s doin’!

Nope. The argument sounds like it was written by lawyer who doesn’t understand equal protection, not by a nonlawyer who doesn’t understand it.

Agree with you on the merits though.

The better distinction, ova notwithstanding, is whether a doctor need be present to extract the donor cells. Blood, sperm, and hair all fall under that umbrella, and assuming you believe that a market solution to organ donation, it makes sense to draw the line at the amount/severity of medical services needed to make an effective donation.

Educate America folks, organ donation saves lives.

EVERYONE else involved (the patient, the hospital, the physicians, society in general) is made better by the donor’s act, and he gets nothing….So of course donated organs are scarce (unless you’re a celeb needing a liver).

ShelbyC: OK, I actually read the arguement. Speaking as a nonlawyer, I can safely say no nonlawyer would come up with that.

Uh, I agree with Steve here. How’s this- this here law violates equal protection, cuz it treats fishin’ licenses like huntin’ and wrasslin’ licenses. Everyone knows fishin’ and huntin’ and wrasslin’ go together. That’s just arbitrary what the gummint’s doin’!

(On the merits, I don’t think the government should criminalize the sale of bone marrow. But that’s what democracy is for. Get your legislators to change the law.)

Steve: The rational basis standard needs some teeth.But only when applied to a law I disagree with, naturally!

My toothed rational basis doesn’t discriminate.

Why doesn’t Congress just amend the National Organ Transplant Act to remove the restriction on payments for marrow cells?

Better question: Why doesn’t Congress just repeal NOTA altogether?

Answer: Because (a) Democrats are instinctively hostile to market solutions despite the countless lives lost as the predictable result of artificial shortages that laws like NOTA produce; and (b) Republicans think that it’s just a short jump from repealing NOTA to some Gattaca-esque dystopia where we raise clones for organ harvesting.

Steve: The equal protection argument sounds like something a nonlawyer would come up with.

OK, I actually read the arguement. Speaking as a nonlawyer, I can safely say no nonlawyer would come up with that.

But only when applied to a law I disagree with, naturally!

Mark N.: Substantive due process precedents hold that any restriction of liberty at all requires a “rational basis”, but almost anything even remotely plausible suffices.

The rational basis standard needs some teeth.

Mark N.: Substantive due process precedents hold that any restriction of liberty at all requires a “rational basis”, but almost anything even remotely plausible suffices.

Depends on whether or not the judge likes the law. Remember Reinhart found no rational basis for excluding retired cops from a ban on assault weapons. There’s plenty of remotely plausible bases for that.

Malvolio:
Is there is a legal defense along the lines of “this law doesn’t make any sense”?

Sort of in theory, but not really in practice. Substantive due process precedents hold that any restriction of liberty at all requires a “rational basis”, but almost anything even remotely plausible suffices.

Steve: The equal protection argument sounds like something a nonlawyer would come up with.

Is there is a legal defense along the lines of “this law doesn’t make any sense”?

FWIW, ova (eggs) are neither renewable nor inexhaustible — it’s just that donating them doesn’t exhaust the supply any faster than not-donating.