Today I’d like to discuss how to apply principled judicial engagement to the bone marrow case (see previous posts here, here, and here), and I hope to explain this in a way that responds to some of the concerns in the comments that this case may lead to open-ended judicial activism. Judicial engagement provides meaningful rational basis review (call it rational basis with “bite,” if you’d like) without opening the door to activism, amorphous “privacy”-type rights, or any other personal preferences of judges.
The constitutional interest at stake in the bone marrow case is rooted bothin the natural liberty the people retained in ratifying the Constitution and in the longstanding historical practices of Americans. Until 1984, it had never been illegal to participate in safe, accepted, lifesaving medical treatment just because someone involved received compensation. No one has to squint at penumbras cast by, or emanations from, the various enumerated rights to identify the right our clients are asserting in the bone marrow case. Not only is there a substantial historical basis for this very specific constitutional interest (as opposed to nebulous “rights” that could lead to anything), its existence is consistent with the intuitions of most people about what legitimate constitutional interests look like. As I said yesterday, most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs.
The next step is how to apply rational basis review to this right in a meaningful way that respects legitimate legislative prerogatives and does not allow judicial activism. We can certainly begin with a presumption of constitutionality, as the rational basis test does. The key is that this presumption cannot be irrebuttable or the functional equivalent (for example, requiring a plaintiff literally “to negative every conceivable basis” for a law). After all, if the presumption of constitutionality is irrebutable, then there would be no judicial review under the rational basis test. But there is meaningful review under the rational basis test. The Supreme Court has found that at least a dozen laws lacked a rational basis (some are equal protection cases such as Quinn v. Millsap, 491 U.S. 95 (1989) or Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), while others involve different constitutional provisions with rational basis review such as the Commerce Clause in U.S. v. Lopez, 514 U.S. 549 (1996)) and other courts have done the same literally hundreds of times. Some people (even Supreme Court Justices from time to time) may seem to imply that the rational basis test requires the government to win in every case, but that just isn’t borne out by the case law
Meaningful rational basis review requires judicial engagement and courts using this approach have protected liberty without being activist. Judicial engagement involves looking at the government’s proffered justifications, looking at the facts (something courts do in other contexts all the time), and determining if those justifications are at all plausible (meaning genuinely credible and believable, and not just fanciful). If they are, then the statute should be upheld. But if, despite a strong benefit of the doubt, the challenged law does not in any sense plausibly advance a legitimate government interest, then the law should be invalidated.
IJ’s win in Craigmiles v. Giles, 312 F.3d 220 (6th Cir. 2002) illustrates judicial engagement. Tennessee violated the right of our clients to earn an honest living (an unenumerated right long recognized by the Supreme Court and protected by the Privileges or Immunities Clause of the Fourteenth Amendment) by restricting casket sales to licensed funeral directors. The state proffered a host of purported health and safety interests this restriction might serve. But the facts showed that the law didn’t plausibly advance any of those and all the law accomplished was protecting a cartel of funeral directors from competition. Public power for purely private gain isn’t a legitimate government interest and that law was rightly invalidated. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), is similar in that the facts showed that the government’s pretextual prohibition of a permit for a group home for the mentally handicapped did not credibly advance any legitimate government interests the city proffered.
Let’s apply judicial engagement to the bone marrow case. We should begin with a strong presumption of constitutionality, but that should be tempered by a willingness to look at the facts and measure the government’s justifications against a standard of at least basic plausibility. What are the legitimate government interests NOTA is trying to advance? We know a few for sure. Congress didn’t want living donors getting compensated for invasive organ surgery because doing so puts people at what Congress decided is too much risk. Congress also didn’t like that organs don’t regenerate. Finally, Congress didn’t want organ markets.
None of these interests is remotely advanced by criminalizing compensation for marrow cells. Marrow cells are not an organ; they are renewable; and getting them is safe. Our clients are not asking to create markets in their narrow as-applied challenge and, due to the peculiar features of marrow cells and the requirement that donor/patient matching is anonymous, there is no credible possibility that this case will create marrow markets.
How about hypothetical interests? Is it plausible that Congress criminalized compensation for marrow because of problems with paid blood donors in the 1970s? Not only was this never mentioned during the NOTA hearings, NOTA didn’t criminalize compensation for blood (which, if it was worried about problems with paid blood donors, would have been priority one). Moreover, the text of the statute, along with the final conference report and many other pieces of legislative history, make it clear that the criminal provision of NOTA isn’t supposed to reach renewable cells like blood. Or how about this hypothetical concern: Congress could have included bone marrow in NOTA to protect people from the temptation of subjecting themselves to sheer unpleasantness for compensation? I guess that’s “conceivable,” but it isn’t credible in light of the legislative history, the text of the statute, and common sense.
Let’s assume that the fact-record shows either that the bone marrow provision does not plausibly advance any of Congress’ actual interests. Let’s also assume that there are not any hypothetical justifications for the law that could plausibly be imputed to Congress.
So what would happen if, as we expect, the courts invalidate the application of NOTA’s criminal provision to our clients? All such a case would say is that plaintiffs witha specific and demonstrably legitimate constitutional interest can vindicate their rights, not by hoping for an activist judge with a personal preference for them, but by rebutting under a demanding evidentiary standard the strong presumption of constitutionality with evidence clearly showing that the challenged law does not plausibly advance any legitimate government interest.
Judicial engagement of this sort is not judicial activism and a decision in our favor in this case would not lead to judges invoking sweeping and ill-defined “rights” to rework the world according to their own personal preferences.
Meaningful judicial review is part of our systems of checks and balances and judicial engagement simply ensures that courts play their vital role in protecting liberty from arbitrary, irrational, and otherwise illegitimate deprivations.
Steve says:
Setting aside the legislative history, in what way does the text of the statute “make it clear that the criminal provision of NOTA isn’t supposed to reach renewable cells like blood”?
There’s a lot of rhetoric in these posts, as if we’re a mock jury or something, but not much meat on the bones — no pun intended.
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November 5, 2009, 4:02 pmDavid Welker says:
That standard is not whether the law is, in your opinion, “arbitrary, irrational, and other illegitimate.” The standard is whether or not the law is unconstitutional.
This is not a case where the judiciary should be involved. If inclusion of bone marrow donations in the law was an error, as you assert, the remedy is for the legislation to be fixed by Congress, not the judiciary.
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November 5, 2009, 4:14 pmOff Kilter says:
Response to DW: It need not be an either-or. Ships have both life preservers and life boats. You presumably wouldn’t say, “The remedy for ships sinking is lifeboats, not life preservers.” You would understandably be glad that the ship had both.
Similarly, there is nothing wrong with, while hoping for a legislative solution, also pursuing a judicial one, unless you believe there is no such thing as proper judicial review.
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November 5, 2009, 4:29 pmPatHMV says:
You really should have led with this argument, not all the crap you’ve been spewing the previous few days. It’s much better. Not good enough, but much better and more focused.
Now let’s discuss some specific issues. According to Marrow.org, some 1.34% of all donors experience “serious” complications due to effects of the anesthesia or to bone, muscle, or nerves near the hip, the area from which the marrow is withdrawn. By contrast, one study on complications of donating blood showed that there were only 0.9% of even minor complications, and only 6% of those with any complications at all ((which is 0.054% of all donors in the study) required a trip to the emergency room, and none at all required a hospital stay.
So one rational basis for Congress to treat bone marrow differently from blood, plasma, and semen is that the rate of serious complications from marrow donations is perhaps 24.8 times higher (1.34% versus 0.054%) than for blood donation.
The same page at Marrow.org says that about 75% of bone marrow donations are taken from the donor under general anesthesia. There is a growing body of research suggesting that general anesthesia itself may lead to long-term cognitive dysfunction (of varying degrees in different individuals, of course), though this is in no way definitively established at this point.
So another rational basis for Congress to include bone marrow, but not blood, plasma, and semen, in the ban on organ sales is that harvesting bone marrow, unlike obtaining those other renewable cells, generally involves general anesthesia, and a recovery time of several weeks.
Of course there is ample room to quibble over the details of these various studies. As always, the question is who gets to make the decision, who gets to decide which studies are considered credible and which not credible. Mr. Rowes apparently wants the courts to make those kinds of policy calls. Generally speaking, I prefer Congress to do so, when they are legislating within the scope of their constitutionally-granted powers.
Not only must somebody decide which studies to accept and which to reject, but somebody has to decide what the cut-off point is. Can Congress ban sale of organs if there is a 100% chance of the donation causing death to the donor? I certainly hope so. Can Congress ban sale of organs if there is a 50% chance of death? Probably. Now how about 10%? 5% Can Congress ban the sale of an organ if there is, hypothetically, a .01% chance of death to the donor, and a 1.5% risk of serious complications? Does Congress get to decide which level of risk is appropriate, or do the courts?
This remains the fundamental problem with the practical application of the “rational basis” test. It’s not that the line drawn by Congress is technically “irrational” (i.e., lacking any logic or reason at all), but simply that somebody doesn’t care for where they’ve drawn the line in a continuum of risk.
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November 5, 2009, 4:34 pmSteve says:
I do think, Pat, that in any argument where sales are banned because of risks to the donor, you have to deal with the objection “so how come you still let people donate for free?”
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November 5, 2009, 4:48 pmPatHMV says:
I don’t think it’s that complicated, Steve. Clearly there are differences between a society in which sale of organs is allowed and one in which only donation, but not sale, of organs is allowed, yes? If not, then this entire subject is moot, because there will be no actual difference from changing the law to allow the sale of bone marrow. The potential risks from allowing a market in organ sales has been ably presented in many places; this is not the forum to rehash all those basic points once again. It is not irrational for Congress to agree with the arguments against allowing such a market over the arguments in favor of allowing such a market.
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November 5, 2009, 4:59 pmDavid Welker says:
I agree. I absolutely support IJ’s right to bring this lawsuit. Not only that, I am glad they are passionate enough about this issue to do something about it. Good for them. I also think using the term “judicial activist” as an epithet is overused.
That said, whether the lawsuit should or will be successful is another question. I really think the lawsuit is pushing it, because the argument in favor of unconstitutionality is not that powerful and you would not want the unelected judiciary overruling the democratic branches in such a casual manner. If you look at the history of judicial review, you will realize that overturning legislation is an extraordinary event, especially in our early history. Now, of course, if Congress passes a clearly unconstitutional law, the judiciary absolutely ought to overturn that law. That is their duty. But it ought not occur casually. We would not want the unelected judiciary routinely substituting their preferences for the elected branches.
I predict that this lawsuit will fail. For this issue, I think the remedy, if any, must come from the elected branches. That does not mean that I am not glad that there are organizations like the IJ that bring such lawsuits. Hopefully helpful guiding precedent after they lose.
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November 5, 2009, 5:02 pmOff Kilter says:
“We would not want the unelected judiciary routinely substituting their preferences for the elected branches”
Yes. We would certainly never want people who have actually studied the law to overrule people who often obtained their positions by using their own millions to effectively buy their seats in order to pass laws they haven’t read. :-)
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November 5, 2009, 5:14 pmDavid Welker says:
Our system of government in the United States has worked pretty well, by historical standards. The elected branches are obviously not perfect, but I do not think your degree of cynicism is justified.
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November 5, 2009, 5:19 pmSteve says:
By the way, I don’t recall IJ making it clear previously that this is an as-applied challenge. That strikes me as pretty significant. For all the lofty rhetoric, they’re basically saying “look, we concede that there might be a rational basis to ban compensation of bone marrow donors in some other situations, but there’s no good reason to apply it to our client.”
This is, of course, a perfectly fine strategy for a lawyer to pursue, and it may be the best way of advancing the client’s interests, but I’m surprised that an interest group would be interested in bringing such a claim. It would seem to have a very narrow impact even if successful, unless the idea is that it’s worth any amount of resources (and a long-shot legal theory) just to get the camel’s toenail under the tent.
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November 5, 2009, 5:23 pmOff Kilter says:
Dramatically fewer comments on this post. Where have Orin and all the other opponents of this argument gone?
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November 5, 2009, 7:16 pmTGGP says:
most of us would surely agree that there would be a constitutional aspect to a law criminalizing safe, effective, lifesaving medical treatment for the aged or the seriously ill as part of an effort by government-run healthcare to cut costs
Other than that the federal government has strictly defined powers which may not cover that action, I don’t see the constitutional problem.
all the law accomplished was protecting a cartel of funeral directors from competition. Public power for purely private gain isn’t a legitimate government interest
Before governments had as much taxation power as they do now, that was one of their major activities. Chartered corporations had their origin as private enterprises privileged by government, same with copyrights & patents (enshrined in our constitution). John Nye’s “War, Wine & Taxes” shows how important that dynamic was in supposedly “free trade” England. The fifth amendment mentions “public use”, but other powers don’t necessarily have any restriction regarding purpose.
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November 5, 2009, 7:39 pmSuperSkeptic says:
I don’t think your degree of confidence is justified. Look, I agree with your point about having the political branches make democratic decisions over the unelected courts, but that is only the “lesser of the two evils” here. There’s no reason to look so favorably on the one evil simply because it isn’t as terrible as the other — they’re both evils, after all. And the fact that we’ve prospered this far has more to do with the limitations put on that lesser evil (chains which they are breaking increasingly by the day and which prompt lawsuits like this urging the courts to respond in kind) than that they’ve fucntioned properly or as intended. In truth, it seems either structural or political (or both) limitations need to be imposed on the political branches because the solution is not as simple as aggrandizement by the courts, whether it is labelled pejoratively as “judicial activism” or euphemistically as “judicial engagement.”
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November 5, 2009, 8:04 pmDavid Welker says:
SuperSkeptic,
I think your point that the government is the lesser evil is nonsense. You could not have advanced civilization without government. Without government, people would have a much more difficult time surviving.
You may long to live in the time when humans survived solely as hunters and gatherers without any sort of advanced government and with very fluid structures of leadership. (Of course, even in such conditions, you are still likely to have dominant figures in any particular group.) But as soon as humans move away from this mode of survival to either herding domesticated animals or agriculture, government became necessary. I don’t see government as an evil. I see it is a critical tool to advance civilization. Like all tools, of course, government can be used in evil ways, but it can also be used for good. Overall, we would be clearly much worse without it. How exactly is something that makes us better off evil?
What is that phrase?
“Guns don’t kill people. People kill people.”
I think that is pretty much right for both guns and government. Your phrase to me is like telling me that I have to always remember that my gun is in reality evil when I use it to go hunting. I would rather neither anthropomorphize guns nor government and attribute to them human qualities.
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November 5, 2009, 10:26 pmreadery says:
Superskeptic,
I think an honest look at history suggests that both the legislature and the judiciary have turned out to be mistaken in roughly equal proportions. The Supreme Court, after all, brought us Dred Scott v. Sanford (establishing a right to own a slave), struck down working-conditions laws in Lochner, and made a variety of other decisions that have since been regretted. There may be times when mistakes are concentrated in one body or the other, but history tends to even them out over the long term.
Given that we are going to be government by people prone to making mistakes — and there is no other kind — wouldn’t you rather be governed by people that you get to vote for and have a right to communicate with and petition than by people who have no accountability to you at all?
You think of the judiciary as inherently more honest and less corrupt than the legislature. But this, too, varies over time, and there will come a time when the roles are reversed on this as well. What will we do then?
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November 5, 2009, 11:07 pmloki13 says:
I think most of my points have been made in other comments, so I have little to add. I think this post is marginally better than previous posts, but the dissent into pure appeals to pathos (as opposed to purely pathetic appeals)- “criminal provision?” and questionable logic leaves me cold.
I’m just going to throw this in. What the heck is up with the EPC argument. I mean, really? I can think of three EPC cases decided on rational basis by SCOTUS–
Cleburne, Romer, and Millsap.
Interesting note– the IJ didn’t use Romer, supra (no love teh gayz, I guess). What do they all have in common? Either the government was only motivated by “sheer animus” or the only purpose was “invidious discrimination” (kind of a term of art, there). What else do they have in common? The government was discriminating against PEOPLE. Again, to borrow some Charlton Heston– the EPC is People.... It’s PEOPLE!
Also, I think the point is missed from Millsap. Why? Because it had to do with voting/local government. That’s when you get to the civil liberty/EPC crossover, which would allow for an EPC invalidation under rational basis if invidious discrimination is found. Why?
Example: Government passes a law — No brown eyed people may vote.
Okay... we can look at this from a pure civil liberties, or we can go EPC. EPC analysis– brown eyes are not a protected class (per Carolene Products and FN 4) so by itself there;s no heightened scrutiny, but *especially* combined with another right in the context of invidious discrimination it would fail because (to paraphrase Millsap): it is a form of invidious discrimination to require non-brown eyes of all voters. We need apply no more than the rationality review articulated in Turner to reach this conclusion.
*sigh*
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November 5, 2009, 11:28 pmreadery says:
I actually don’ think cleburne, Romer, and Millsap were genuine rational basis tests. I think they’re very similar to Eisenstadt v. Baird, which claimed to use a rational basis test at the time but which doesn’t appear on your list, doubtless because nobody today actually believes it’s a rational basis test any more.
I suggest that all three are actually a kind of “heightened rational basis” scrutiny, which perhaps exists when a majoriy really doesn’t like the law involved but isn’t willing to declare a fully protected class for which strict or intermediate scrutiny would have to be applied in all cases. A couple of appointments later and this hesitation gets dropped. One of the empirical characteristics by which heightened rational basis jurisprudence can be recognized is when the opinion waxes lyrical about the importance of the group or activity involved.
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November 6, 2009, 2:06 amPatHMV says:
By the way, Jeff Rowes, as a matter of effective advocacy you should stop trying to assert that people who disagree with your rational basis concept are against “judicial review.” It’s not true, obviously, and it grates on me every single time I read it, making me WANT you to lose, regardless of the merits, because it’s so ridiculous.
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November 6, 2009, 9:37 amjalrin says:
You realize that you are asking the Supreme Court to imitate the Iranian Guardian Council and review legislation for whether they think it is appropriate in light of social conditions that they are no more qualified to judge than Congress, something the Court has said it does not want to do. I do not see how adding Carolene Products to the list of precedents in your way is helpful to your client’s case. Does this non-profit realize that the IJ is heart-set on using them to advance a particular agenda more than winning their case?
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November 6, 2009, 10:56 amNobody Really says:
Besides that, anesthesia carries a non-trivial risk of death (certainly much larger than donating blood). Refusing to allow paid donations for something that requires anesthesia alone is “rational basis.”
But I was under the impression that currently anesthesia is not required. There is an alternative, which certainly has higher side effects than just blood donation (it involves taking a medication to enhance production of certain cells and then drawing blood and filtering out the cells), but that was not available when the law was passed.
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November 8, 2009, 10:59 amBone Marrow: why must dying patients depend on donations? - Writer, Presenter, Magical Dad - Brian Crouch says:
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