PatHMV: Remember, the Constitution does NOT require that Congress enact libertarian social policies.

Some people might claim that the 9th Amendment, reserving to the People all rights and privileges in areas not expressly delegated to the Federal Government or the States, does precisely that. It’s really a shame that the Supreme Court has never taken the 9th Amendment seriously.

David Chesler: jhubme_24, how do you fake HLA results? Might calling people who give it away selfless heros encourage people to donate who shouldn’t?

Quite possibly, but the question is whether there’s a “rational basis” for the law, not whether the law is good policy.

PatHMV: Remember, the Constitution does NOT require that Congress enact libertarian social policies.

What a useful comment.

If only there was some deliberative body that made laws that could decide these sorts of things, a body that was accountable to the people!

Anyway, from what I gather from the linked-to editorial, the IJ just doesn’t believe that Congress should be passing (has the power granted under the Constitution) to pass these sorts of laws. Now, that’s an interesting argument. But that’s a different argument than saying that there’s no rational basis for the law.

I disagree with both arguments, but I at least find the first plausible (if unsound for a number of reasons). I still can’t wrap my head around this…. why on earth would a conservative group choose to advance their agenda by empowering the judiciary to strike down laws they *simply disagree with*, as opposed to finding a hook that will come back to bite them in the… posterior.

jhubme_24, how do you fake HLA results? Might calling people who give it away selfless heros encourage people to donate who shouldn’t?

David Nieporent: That might be an argument for banning bone marrow transplants, but how it can be a rational basis for banning compensation for bone marrow donors?

The rational basis is that allowing compensation from donors might incent bad behavior from the donors or custodians of their donated marrow (such as misrepresenting HLA-testing results or the health of the donor). Such bad behavior is likely to lead to graft-versus-host-disease and, ultimately, a rather poor prognosis for the recipient.

As others have pointed out, donating bone marrow is more like donating a kidney than donating blood in the sense that there’s a specific recipient who needs your bone marrow right now, as opposed to a mere possibility that maybe your blood might help someone someday or it might not. So I don’t think anyone has a moral obligation to register with the bone marrow database – it’s completely up to you – but if you register, and they tell you “we have a match, you can save this person’s life if you do the procedure” then I don’t have a high opinion of someone who would respond “fine, I’ll do it, but only if I get paid $500.”

Remember a few years back in Germany, a woman was denied unemployment benefits because she refused to accept a job as a prostitute. What rules would we adopt? What rules would Mr. Rowe’s jurisprudential arguments allow us to adopt for, say, qualifying for Medicaid? Right now, you have an obligation to spend all but $X of your net worth, both cash and assets, in order to qualify. If the going rate for a kidney of your type is, say, $50,000, will you have an obligation to sell your kidney before you qualify for government assistance?

I am NOT in favor of kidney markets. However, being able to sell bone marrow is not fundamentally different from being able to sell plasma. Or at least it is more similar to that then to selling a kidney.

The ban on compensation costs lives in the case where someone would donate their marrow to save someone’s life, but declines to do so because they’re not getting paid. I’d say the morally culpable party in that scenario is the person who refuses to save another’s life unless they’re compensated, as opposed to the government which bans compensation, but to each his own.

A grateful father
The inclusion of bone marrow in the statute is not just irrational, it is criminal.A national database will save lives.

There IS a national database: The National Marrow Donor Program

Since the NMDP is a registry, exactly what are you complaining about?

The same circumstances conceivably would be true among paid marrow donors vis-a-vis volunteers.

Whether empirically validated or not, this comprises a basis for accepting the constitutionality of the current statute on a rational basis. And, for the benefit of those who didn’t take Con Law, “rational basis scrutiny” is a term of art that means that any plausible nexus between the proposed remedy and a legitimate government purpose overcomes constitutional objections to the law. It doesn’t mean that the remedy is correct or rational. Rational basis scrutiny has been almost impossible to apply to invalidate a law.

Technology for detecting blood-borne diseases is much better now, and the law may not protect anyone. But recipients of marrow transplants have to take immunosuppressive drugs unless the donor is an identical twin, and the protective effect of the law depends on who the donor pool will be (and they aren’t all clean living folks who happen to be down in their luck) and the likelihood af transmission of an infectious disease with the transplant.

Moreover, Rowes’ description of the Framer’s setting up the judicial branch to protect our rights is, I think, not terribly historically accurate. Yes, they provided, implicitly, for judicial review, even on the constitutionality of statutes. But a reading of the Federalist Papers makes it clear, I think, that they viewed the primary mechanism for protecting our rights to be the structural conflicts between the two chambers of Congress and between Congress and the President.

Indeed, I think much of the problems we’ve seen with Congressional overreaching has been precisely because that body has institutionally given up any pretense of giving serious consideration to the constitutionality of its own actions. It has, in essence, decided that it will enact any legislation it wants, and leave it to the Court to determine whether it is within the scope of Congressional power. This is dangerous, I think, and attitudes such as that evinced by Rowes’ op-ed, placing undue reliance on the judicial branch to protect our rights from the enactment of laws (as opposed to the enforcement of laws), promote that attitude.

Don’t assume that by recognizing there’s a clear rational basis, I agree with the law. I don’t agree with it, but I think it’s constitutional.

krs: As with previous posts: totally unconvincing today, and I’m now more anxious than ever for the post explaining why rational basis review and “judicial minimalism” should go away.

You might be interested in a WSJ op-ed Jeff Rowes wrote called “Judicial ‘Activism’ Isn’t the Issue.”

1. I asked in a previous thread for actual case law to support the proposition that an absence in the record prohibits judges from recognizing valid rational bases for a law. I don’t see any here; if the OP is argung for a modification of the current law, that is one thing, if he is arguing for the application of existing precedent, that is another. He doesn’t say what he’s arguing for, other than it’s wrong.

2. I think the spirited discussions in these threads give lie to the OP’s beliefs that there is *no rational basis* for this law. It seems that there are, in fact, people who agree with it. Therefore there is a *rational basis*. It might be an unwise or unsound law, but it is not irrational.

3. The OP is relying on some legislative history, some conference reports, and interviews conducted more than 20 years after the fact do determine Congressional intent CONTRARY to the actual explicit text of the bill? Not to inform… not to decode ambiguous language… wow. And the IJ is conservative?

I find some of the IJ’s work to be refrshing and helpful. But these posts, so far, remind me of the first law of holes.

PatHMV: It makes me feel as if supporting your argument on bone marrow would be opening the door a crack more to full-fledged organ markets, and I think that’s a terrible, terrible policy decision. From past discussions on organ markets here at Volokh and elsewhere, I know that I’m not alone in that, no matter how obviously right a policy it may be to hard core libertarians.

And vice versa, I think markets in both are a grand idea, for exactly the same scenarios, and we can refer to those past discussions.

I agree with PatHMV, I’d like to hear an IJ statement one way or the other. I’m not a doctrinaire purist — strange bedfellows and all that — but nobody likes being played.

Does Congress really not have version control?

I also agree with Steve in that I don’t like calling any bit of any legislation that seems stupid a scrivener’s error unless at a later date someone can find the stated reason. (Although if Congress itself were saddled with the kind of documentation requirements that apply to work under government contract, that might be a good idea.)

DerHahn: David Nieporent and anon, the point is that a rational argument for including bone marrow with kidney, heart, liver and other organ/tissue donations covered by NOTA, and distinguishing it from blood product or semen donation, *can* be constructed despite the IJ’s hand waving about the legislative record.

I see. Bone marrow, like solid organs, has a higher likelihood than blood of harming the recipient. Congress has a legitimate interest in reducing this harm. Congress decided to reduce this harm by reducing the total number of bone-marrow transplants, which they’ve accomplished by prohibiting compensation and creating a shortage of donors. Perfectly rational. Gives me hope for my plan to reduce medical malpractice by prohibiting paying doctors for their services.

Will you force my surviving wife and children to live in poverty because of your “horror” at the thought of organ sales?

I know of no way to allow people in a situation like the one you describe to be able to sell organs without also allowing situations that are much more questionable. So the answer is “tough”.

Many things done by society will hurt some individuals–a justice system will inevitably convict some innocent people, for instance. Asking “what if I was in the unusual situation where selling organs helps my family without shortening my lifespan since I’m dying anyway” is like asking “what if I’m one of the few innocent people who gets caught by accident in the justice system”. It’s not a reason not to have a justice system, or not to have restrictions on organ selling. Certainly you could do all you can to minimize such cases, but it’s a fact of life that no system is perfect, and asking “what if I’m one of the rare people who gets hurt by your system” is not a reason not to have it.

This is not anti-judicial review. It is pro-democracy. The case for judicial review is strengthened when Congress refuses to change a law despite Constitutional problems. Judicial review is an extraordinary remedy and should not be used to solve problems that could be easily solved by the democratically elected and democratically accountable legislature. Your argument that this was merely a mistake and not the intent of Congress would indicate that it should be fairly easy to get Congress to change the law. For that reason, I think the argument that this was a mistake makes the case for judicial invalidation weaker rather than stronger.

I predict that your lawsuit will be thrown out of court. Bone marrow can easily be distinguished from blood or sperm, in that extracting it is much more invasive than extracting blood or sperm and also more risky. Your case is a likely loser.

I probably agree with you on policy (I would have to study the issue more carefully to be sure) but I definitely disagree with your strategy for bypassing the democratic process.

some guy in ohio: Two-time kidney transplant recipient here. For what it’s worth.As jhubme_24 says, there is a substantial risk to the recipient when bone marrow tissue is donated. This is not generally the case with blood and sperm. Yes, there are some rare, well-understood risks from receiving blood, but nothing like the very high risk of rejection of donated marrow. This is surely a rational basis for including bone marrow on the list. Full stop.Just lobby to get the law changed, solicitor.

I don’t get that argument. Because the recipient faces a greater risk, the donor shouldn’t get paid? Their need to pay would prevent them from taking the risk? If the donor faced a greater risk, that would be more applicable.

I’m willing to bet a search of IJ computers would find outlines for briefs on why kidney donors should be allowed compensation if bone marrow donors who undergo similar surgical procedures are being compensated.

As a policy matter, to the degree that the above concern is even practical (it would require investigation or just experiment with permitting a market price and see if such a thing happens) I would rather see it addressed by a price control (say no more than 2x the average price for blood plus any actual expenses incurred and insurance for any negative effects from the donation (side effects of the procedure) or some similar formula), or perhaps some other less intrusive way, but it is rational to just set the price at $0 to avoid the issue.

On the policy issue everyone on this comment thread seems to agree, and yet they don’t buy constitutional argument. This isn’t going anywhere in court.

some guy in ohio: As jhubme_24 says, there is a substantial risk to the recipient when bone marrow tissue is donated. This is not generally the case with blood and sperm. Yes, there are some rare, well-understood risks from receiving blood, but nothing like the very high risk of rejection of donated marrow. This is surely a rational basis for including bone marrow on the list. Full stop.

In what way does prohibiting compensation of bone-marrow donors matched through the national registry advance the government’s interest in reducing tissue rejection? By what conceivable mechanism are donations received from compensated donors more likely to be rejected than those from uncompensated donors?

As jhubme_24 says, there is a substantial risk to the recipient when bone marrow tissue is donated. This is not generally the case with blood and sperm. Yes, there are some rare, well-understood risks from receiving blood, but nothing like the very high risk of rejection of donated marrow. This is surely a rational basis for including bone marrow on the list.

That might be an argument for banning bone marrow transplants, but how it can be a rational basis for banning compensation for bone marrow donors?

DjDiverDan:
Or are you simply stating that it is perfectly permissable for Judges and Justices to ignore constitutional provisions whenever the results strike them as “wrong”?

I was speaking to the realpolitik of litigation, not to whether it was “permissible.” Assuming for the sake of argument that the privacy argument is a sound one, it would be poor litigation strategy for IJ to base its claim on it.

As jhubme_24 says, there is a substantial risk to the recipient when bone marrow tissue is donated. This is not generally the case with blood and sperm. Yes, there are some rare, well-understood risks from receiving blood, but nothing like the very high risk of rejection of donated marrow. This is surely a rational basis for including bone marrow on the list. Full stop.

Just lobby to get the law changed, solicitor.