All of us at the Institute for Justice want to thank Eugene for giving us an opportunity to discuss our latest case this week (previous posts here, here, here, and here). I want to use this last post to respond to a few comments.
First, some people have argued in the comments that just because a law is arbitrary or irrational, it’s not unconstitutional. That’s actually incorrect. The Supreme Court has always said that the constitutional standard in the rational basis context (including the equal protection and substantive due process contexts) is arbitrariness or irrationality. If a statute is arbitrary or irrational, then it’s unconstitutional. That’s con law 101.
Next, some readers may not yet be convinced that the facts will show the genuine irrationality of throwing our clients in prison for using charitable funds to make more marrow donations happen. One enterprising commentator even did independent research on statistics to try to show that donating marrow isn’t as safe as we say it is.
We don’t need to prove the facts in a blog post (that’s for trial), but this discussion of the facts highlights something important: facts matter. As I said yesterday, a presumption of constitutionality is fine as long as it’s ultimately rebuttable through the presentation of evidence. The problem with taking the current standard (“negative every conceivable justification”) too literally is that doing so amounts to transforming the rebuttable presumption of constitutionality into an irrebuttable one.
Fortunately, courts don’t generally take the “negative every conceivable standard” literally. There are hundreds of winning rational basis cases across the country and the winning plaintiffs didn’t actually “negative every conceivable” justification for the invalidated government action. And what would it mean anyway to “negative” something and how could a lawyer know when she’d “negatived” literally every “conceivable” justification for a challenged government action without first deposing the judge and opposing counsel (as well as future appellate judges) to determine how many “conceivable” justifications are in play?
Another commentator remarked that it made a positive difference to him that our bone marrow case is an as-applied challenge. That commentator was right that we’re not trying to strike bone marrow from the statute on its face. We just don’t think it’s even minimally rational to apply criminal sanctions to our clients—who simply want to operate a pilot program using charitable funds from third-parties to incentivize more bone marrow donations—because applying the law to their pilot program advances none of the interests Congress was trying to serve with the statute. We’ve brought exactly the sort of narrow as-applied challenge that the Supreme Court says it prefers.
Kudos to the commentator who pointed out that just because you have life-rafts (legislatures) doesn’t mean that you don’t also need life-preservers (rights and judicial review). Some people seem bothered by the fact that we’re taking this case to court, arguing that we should just try to get the legislature to repeal the law. But we have three branches of government for a reason, and each of them has an independent duty to the Constitution. The fact that Congress can repeal a law doesn’t remove the judiciary’s independent obligation to apply the Constitution any more than the President’s ability to veto an unconstitutional bill relieves Congress of its independent responsibility to ensure that it send only constitutional bills to the President’s desk.
Thus, while our case is unusual, it isn’t radical. The specific right we’re seeking to vindicate is well-grounded in American history. Our challenge is as-applied and narrow. And we’re just asking courts to do what they have done in hundreds of other cases where citizens have prevailed on rational basis claims.
Thanks again to Eugene and everyone else.
yankee says:
And yet, in a week’s worth of posts, you couldn’t be bothered to actually analyze any of those cases and show how they support your client’s position. “Other people have won rational basis cases, so we should win this one” is not a convincing argument.
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November 6, 2009, 2:52 pmRoger says:
Would your same argument prove that laws against prostitution are irrational, and hence unconstitutional?
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November 6, 2009, 2:55 pmtvk says:
OK, you are an advocate, as well as someone who genuinely believes in his cause, we get that. But your response contains an internal tension that makes it rather unfair. When the commentators say that just because a law is irrational doesn’t make it unconstitutional, largely what they mean is that just because a law is “irrational” in a common sense way of speaking doesn’t make it irrational in the con-law speak way of speaking. In short, you are being extremely literalist about the “rational” test and the way that it maps onto ordinary language.
But then you tell us that taking the “negative every conceivable justification” language too literally is bad and that courts don’t do it anyway. In con law land, those two are the same: “irrational” = “no conceivable justification”. You can’t pick the phrasing that you like (irrational) to take very literally, and dump on the one you don’t.
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November 6, 2009, 3:11 pmCGordon says:
My only concern with this “as applied” approach is that it won’t really provide the relief required, i.e., the right to buy marrow (and sell) marrow on an effective market. This is not to mention the fact that the market for kidney’s is not even remotely addressed.
Check out this great article at Investors Business Daily at http://www.investors.com/NewsAndAnalysis/Article.aspx?id=511440&p=1&refresh=5129334703466412
My personal take on NOTA is that it is a feel-good law. That is, until one considers the ramifications. Because most Americans are not waiting for kidneys, etc., and most Americans will not consider the ramifications of the law on their own, there is little chance that congress will act on the matter.
Also, why is this case being brought in the Ninth Circuit. Is it for practical reasons or is it because you want an adverse ruling on the appellate level to get cert.? I hope its the former.
Best of luck.
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November 6, 2009, 3:19 pmJ. Inigo Montoya Scalia says:
Irrational. You keep using that word. I do not think it means what you think it means.
edit– tvk said it better.
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November 6, 2009, 3:25 pmOff Kilter says:
As the commenter who used the analogy to lifeboats and life-preservers, thank you. I feel at this point compelled to mention I first saw this analogy in one of Randy Barnett’s books...
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November 6, 2009, 3:53 pmBobo Linq says:
You say:
Actually, this is a common misconception, as explained in footnote 6 of O’Connor v. Pierson, 426 F.3d 187, 200 n.6 (2d Cir. 2005):
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November 6, 2009, 3:53 pmPatHMV says:
As the “enterprising commenter” who brought some statistics to the table, I say that you have missed my fundamental point, which is that the real question is who gets to decide. I was not trying to debate the specific statistical risk with you, only to point out that there clearly is SOME risk. You assert, essentially, that the level of risk is so small that it is “irrational” for Congress to ban compensation for bone marrow donations. You ignore my request for a rule of law which will allow the court to determine what level of risk is so small that it fails to justify Congressional action. You seem to say that the court has the authority to listen to different experts testify about whether the risk of serious complications is 2% or 1.34% or .9% or 8% or whatever, and then hear testimony about the alleged benefits of allowing the compensation, and determine whether the risk-benefit analysis is such that Congress may or may not pass that legislation. The courts are ill-equipped to make those decisions, because those are policy decisions, not legal ones.
You are proposing something pretty radical, and your earlier posts make that quite clear. You are going to lose, I guarantee.
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November 6, 2009, 4:07 pmanon says:
I’d be interested in hearing a rational explanation for how compensating a donor exposes them to more risk than not compensating them does.
Or are you genuinely asserting that Congress can selectively ban people from participating in an otherwise legal activity based on wholly arbitrary criteria (whether they were compensated, whether their name starts with the letter “P”) so long as the activity poses some hypothetical risk to the individual?
You are proposing something pretty radical.
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November 6, 2009, 4:22 pmPatHMV says:
anon... Increasing the number of people subjected to the risky procedure (which is what proponents of organ sales say will happen) means that you will increase the absolute number of people experiencing the complications.
Do you agree that Congress could ban a procedure which has a 100% risk of death? How about one which has a 90% risk of death? At what point does the risk become so low that Congress cannot regulate it? What’s the rule?
I never said that the risk of harm to any individual donor increases when compensation is involved. The overall risk of harm to society as a whole is what’s at issue.
From your comment, you seem to believe that in order for Congress to rationally ban the sale of organs, it must also ban the donation of organs. Is that correct? Or do you think that Congress doesn’t have the power to ban either the sale or the donation of organs? If the latter is the case, do you think I have a constitutional right to sell my hand to someone? My face? (I’m talking here a living donation, not a post-mortem transplant).
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November 6, 2009, 4:31 pmloki13 says:
Or are you genuinely asserting that Congress can selectively ban people from participating in an otherwise legal activity based on wholly arbitrary criteria (whether they were compensated)....
Like..... sex?
Or how about marijuana? States ban it for pleasure, allow it for medical use? (Or is that not arbitrary?)
Heck, I don’t think it would take you long to thin kof all sorts of examples of things that people can’t sell. When was the last time you saw a *single* cigarette for sale? And so on...
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November 6, 2009, 4:45 pmanon says:
So Congress could ban all people whose names start with the letter P from having sex?
Bummer, PatHMV.
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November 6, 2009, 5:02 pmPatHMV says:
anon, are you ever going to actually answer any of the questions I’ve asked? I’ve actually explained why I think there are non-arbitrary justifications for the ban. You, however, simply keep demanding answers, which I’ve already provided, without actually answering any of the questions posed to you.
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November 6, 2009, 5:10 pmMichelle Dulak Thomson says:
PatHMV,
I dunno, it seems to me that anon has a point. For the risk to marrow donors to be a rational reason to ban compensation of marrow donors, you have to believe that Congress was trying actively to discourage marrow donation. That is, that Congress would be happier the fewer people donated marrow; that Congress was reluctant, for whatever reason, to ban marrow donation outright, but figured that at least if donation went uncompensated there’d be less of it. Does that seem plausible to you?
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November 6, 2009, 5:43 pmMike McDougal says:
I hope so.
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November 6, 2009, 6:00 pmPatHMV says:
Depends on where you put the focus, Michelle. And I certainly haven’t made an exhaustive list of all the possible rational reasons for treating marrow differently from blood donation. My use of statistics in the last thread was simply to show that there are, in fact differences between blood, plasma, and semen donation and marrow donation.
Nobody on the pro-sale side has yet been willing to answer my questions. Do you agree that Congress can rationally decide to ban the sale, but not the gift, of a kidney? Or do you think that Congress must either ban both or allow both?
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November 6, 2009, 6:00 pmPatHMV says:
To directly answer your question, Congress may have simply felt that the risk of marrow donation is sufficiently great that people should not be tempted into it because of economic need. That doesn’t mean that they actively desired fewer donations... their aim (with kidneys, marrow, or whatever) may not be aimed directly at the risk of harm to the individual, but is intended more to protect individuals from facing economic duress which leads them to undertake medical risks which provide only medical risk to them (no medical benefits) which they would not otherwise undertake. It’s not that Congress’ goal is to reduce the number of donations, but to reduce the number of donations made for reasons of economic duress (which, I understand, is not an argument accepted by most ideological libertarians).
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November 6, 2009, 6:06 pmOff Kilter says:
Pat, would you count it as an argument against your position if you found that the risks of ova donations, which are allowed, are greater than the risks of marrow donation? Because, given the nature of harvesting each, it may well be riskier (I’m a physician, but I speculate because it’s not my specialty area.)
Given that risks are a function of technology, and thus change over time, is that an argument for allowing judicial review to take cognizance of such changes rather than going through the laborious efforts of having Congress re-evaluate everything every time there is a change in the risk statistics?
Or might risk be something competent adults could waive? Could it possibly be that, in a free country, the risk one accepts might be left up, neither to Congress or the courts, but to oneself? Isn’t your entire argument based on risk something better handled by informed consent rather than political usurpation, by arbitrary Congressional diktat?
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November 6, 2009, 6:19 pmOff Kilter says:
By the way, I’m sorry to see Professor Kerr has ceased to enlighten us with his analysis of your presentation, Jeff. I suspect, sadly, it’s because he still believes you are unconstitutional...
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November 6, 2009, 6:25 pmjalrin says:
I think everyone is missing Pat’s point. The United States is not Iran or ancient Athens where one can usccessfuly challenge a law because it is counterproductive or not useful according to some standard of measurement.
What right is there that would prohibit Congress from saying that somethings are not for sale even if they may be freely given? Without such a right, this challenge is doomed to failure and the IJ is doing it’s clients a terrible disservice by not trying a different legal tactic that might work instead of ignoring their client’s interests to attempt to overturn precedents that are not going anywhere.
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November 6, 2009, 7:12 pmSteve says:
A good example of what Pat is talking about are raw milk laws. No one is going to stop you from drinking your own cow’s milk without pasteurizing it, but if you try to sell it commercially, there’s going to be a problem.
It’s perfectly acceptable as a constitutional matter for Congress to say, “We don’t like bone marrow transplants at all, but we’re willing to compromise and allow them as long as they’re wholly noncommercial.”
By the way, a funny postscript is that I didn’t expect much from this week’s series of posts, because I figured it’s boring when everyone is on the same side of an issue. I was sorta right, only thing is, everyone was on the opposite side from what I expected!
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November 6, 2009, 7:22 pmMalvolio says:
As a factual matter, Congress didn’t feel that way; in fact, the inclusion of marrow in the law seems to have been a drafting error.
Nonetheless, Congress’s feeling that way wouldn’t have been utterly batshit insane, which apparently satisfies the “rational basis” criterion.
Just as the M’Naughton Rule distinguishes “crazy” people (who are to be hospitalized) from “evil” people (imprisoned), Rational Basis distinguishes “crazy” laws (which are struck down) from “stupid” laws (which are upheld).
By any libertarian.
Indeed it’s hard to see why anyone of near-average intelligence or above would prefer the current situation, wherein Person A remains in economic difficulty and Person B flat-out dies to the alternative situation, where Person A takes a very minor risk and is relieved of his financial troubles and Person B gets to live.
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November 6, 2009, 7:32 pmDavid Welker says:
It is true that “arbitrariness or irrationality” is part of the standard, but part of the problem is that your subjective perception that something is “arbitrary or irrational” does not make it so. Judges have many times reaffirmed that they will uphold laws that they personally do not agree with or do not feel optimally advance the ends that you wish them to advance.
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November 6, 2009, 7:34 pmSuperSkeptic says:
Frequently. They are routinely sold in corner stores in and around the major cities I have enjoyed the pleasure of in the United States.
Edit: They are called “loosies” and go for a quarter usually. I have no idea whether they are legal or not.
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November 6, 2009, 8:02 pmloki13 says:
Most states make loosies illegal. Not sure about all. Doesn’t keep keep people/stores from selling them, just like drugs are illegal, prostitution is illegal, and selling alcohol to minors is illegal.
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November 6, 2009, 8:58 pmSuperSkeptic says:
loki13, thanks for the info; I figured as much. To tie it back in to the post — “is that irrational”? I do not know, but it shows, I think, what Pat is trying to say, i.e., “rationality” is in the eye of the beholder (and therefore best determined by the legislature(?)). I don’t think, necessarily, that the people who oppose this lawsuit think it is incorrect that the law is irrational, but I think they are keenly perceptive in that SCOTUS would likely find it rational in the end — at the very least becuase of the repercussions of holding otherwise.
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November 6, 2009, 10:35 pmMartinned says:
It’s (almost) the same reason as why prostitution is illegal in the US, or why some countries ban (paid) surrogacy: a deontological moral aversion against selling the human body, or any part thereof.
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November 7, 2009, 9:39 amSteve says:
As a factual matter, Congress didn’t feel that way; in fact, the inclusion of marrow in the law seems to have been a drafting error.
It’s been a whole week and we haven’t seen any evidence at all that it was a “drafting error,” so you can probably stop making that claim.
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November 7, 2009, 12:57 pmMalvolio says:
That’s why my constraint of “near-average intelligence or above” wasn’t pure snark. Laws must be carried out more-or-less rigidly, but they must be enacted with a great deal of consideration of for the consequence. Acting “deontologically” (full disclosure: I had to look it up) — acting solely on the basis of a real or imagined duty and ignoring effects — in this issue, as in many others, is so similar to outright stupidity as to make no difference.
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November 8, 2009, 12:57 pmreadery says:
In a scientific experiment, people are randomly assigned to different treatments in order to learn about the outcome of those treatments. It’s important to the way science functions for the assignment to be completely arbitrary. If there were any systematic difference between the people assigned to one treatment and the other, or between the people chosen for the experiment and the general population, one couldn’t conclude cleanly that any difference in outcome is the result of the treatment difference as opposed to the othe characteristics.
In my first post I said that even if the particular body parts to eligible or ineligible for market-based treatment were known to have been chosen by drawing straws, the statute still wouldn’t necessarily be unconstitional without knowing more context.
An experiment is one obvious context. Market-based approaches had previously been generally banned. It would not have been unreasonable for Congress to have proposed an experiment in which a small number of procedures were openned to market-based approaches in order to learn whether the bad things people say about market-based approaches are really true without opening the floodgates in case the answer turns out to be “Yes”. And a genuine experiment would have resulted in precisely the sort of arbitrary treatment the IJ is complaining about.
Thus the IJ’s basic premise — that retail arbitrariness, finding two people or two items treated differently without systematic explanation is per se unconstitutional — is basically an assault on science. It would render scientific experimentation, and scientific learning, impossible. Science requires a controlled used of arbitrariness — randomness — in the service of reason. If random treatment is literally out of bounds for government, if government is per se never allowed to touch it, then so is science.
The basis of our federal system is the idea of government being a laboratory for learning, trying new ideas and new approaches on a small scale before committing all of society to something that may after bitter and unforeseen experience turn out to have been dangerous and rash.
In order to achieve this goal, government must be permitted to behave as scientists do, trying out the new approach on a small scale while leaving most things with the old approach. When they do this, I think it’ll be inevitable that outsiders will be able to say, correctly, that approaches are being assigned in an arbitrary, random-like fashion — some things are getting one approach and others a different approach without systematic explanation for a difference between the two.
Other commentators have suggested that there is a systematic difference between bone marrow and other procedures that make them riskier, more invasive, harder to match donors and recipients, etc. and hence somewhat more organ-like. But I do not rest on this. Government could have conducted an experiment on legalizing market-based approaches by trying out a partial legalization, legalizing them in a few contexts but not most, and it could have chosen those contexts completely arbitrarily — literally by drawing straws or picking out of a hat — in order to learn emperically whether market based approaches actually have the dangers in this context that opponents claim they do.
Scientific, empirically based learning requires arbitrary treatment to function. When learning is going on — when society is in the throes of a transition from one paradigm to another — some things will be based on one paradigm and others on another in ways that likely won’t have a ready explanation to an outsider. This is the way things should be if empirically-based learning is taking place, and if society is really giving the two paradigms an honest test.
Empericism — the idea that decisions should be basedon observing what goes on in the world around one — is sometimes in tension with rationalism, the idea that decisions should be based logical deductions from a set of assumed axioms. Rationalism abhors the arbitrary: empiricism requires it to function.
The IJ is trying to stop science here. It’s trying to prevent society from learning whether market based approaches are better than paternalistic ones based on evidence rather than ideology. It’s walking into the middle of an experiment, freaking out, and saying “hey, people are being assigned to treatments randomly here — we can’t have that!” It’s forcing government to pick one approach on the other based on ideology, preventing from empirically acquiring an evidentiary basis by which it could choose one approach or another. If government can’t experiment, it can’t learn.
This is no problem for the members of the IJ, who are certain they know which approach is the best one. Their ideology tells them so.
Nor is there a problem for judges, Judges’ method is instinctively. deductive They simply have no capacity for conducting emperical experiments before making decisions, and deductive methods are embedded in their history.
The problem exists for those who would like to make a decision based on evidence. If the IJ succeeds in declaring science unconstitutional, if government must always be based on rationalism at the expense of empiricism, our system of government can’t function. Indeed, no system of government can function long, because new situtations continuously arise that the old ideological models can’t cover, and new learning and new thinking is required to address them. Empirical methods to see if they work. These methods require being able to try something potentially dangerous on a small scale without putting everyone equally at risk.
one has to look at the whole scheme, at wholesale, to see if it is rationa. One can’t look at rationality at retail in the way the IJ is proposing.
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November 8, 2009, 2:16 pmMartinned says:
That’s why my constraint of “near-average intelligence or above” wasn’t pure snark. Laws must be carried out more-or-less rigidly, but they must be enacted with a great deal of consideration of for the consequence. Acting “deontologically” (full disclosure: I had to look it up) — acting solely on the basis of a real or imagined duty and ignoring effects — in this issue, as in many others, is so similar to outright stupidity as to make no difference.
Well, no it isn’t. The simplest forms of utilitarianism, which only looks at effects, quite obviously leads to unacceptable results, or rather: results that drastically run counter to our moral intuitions. We do not throw someone under a bus on purpose, not even if that saves three others. The more you respond to this problem by talking about rule utilitarianism instead of act utilitarianism, the more you end up near deontological morality.
It’s the same as prof. Posner’s recent posts about rationality and international relations: He and I apparently disagree about whether it is rational for the Member States of the EU to work together in the manner that they do, but in order to argue rationality there I need to cast the net so wide that maybe rationality/realism isn’t a very useful model. When rule utilitarianism is capable of justifying any rule, it isn’t a very useful perspective.
The problem with economists (like myself) is that we are trained since birth (OK, since undergrad) to view everything through the lense of cause & effect, i.e. through the lense of utilitarianism. That is fair enough as a scientific methodology, but as an overall moral theory it is far from perfect. Some acts are just wrong, no matter how much good they might do.
FYI, that is not to say I’d disagree with mr. Rowes. If the risk to the patient is low enough, I’d say it should be possible to sell your bone marrow. But when the risk is significant, I’d say selling your bone marrow (or part of your liver, or a kidney) is wrong, no matter what the circumstances. And that is deontological morality.
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November 9, 2009, 9:21 am