The Volokh Conspiracy

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.

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.

In the past two posts, I outlined the Institute for Justice’s constitutional challenge to the bone marrow provision of the National Organ Transplant Act.  In short, our clients want to use strategic incentives such as $3,000 scholarships to incentivize more lifesaving bone marrow donations, but doing so is considered criminal organ-selling.

Today, I’ll discuss the standard of review that applies to the bone marrow case, called the “rational basis test,” and critique the constitutional philosophy known as judicial minimalism.  Tomorrow, I’ll talk about how principled judicial engagement works (as opposed to judicial activism, which is a legitimate, though overblown, concern).

The bone marrow case is about unenumerated rights so before getting to the rational basis test, let’s briefly discuss unenumerated rights.  Among some conservatives, unenumerated rights are met with glib dismissal, often along the lines of “Last time I checked, the Constitution didn’t say anything about [asserted right X].”

But no one seriously disputes that unenumerated rights exist, although there is considerable debate over their nature and scope.  Who doubts that we have the right to travel or vote or raise children?  The right to earn an honest living in the lawful occupation of your choice was among the first unenumerated rights the Supreme Court recognized and that right has an undeniable basis in the Privileges or Immunities Clause of the Fourteenth Amendment (see Randy Barnett’s outstanding scholarship).

In terms of the bone marrow case, the right at stake is the right to defend human life through safe, effective, lifesaving, and otherwise legal medical treatment.  Is there serious doubt that this right exists?  Suppose Congress passed a law forbidding doctors from providing medical treatment to the sickest or oldest Americans in an effort to control healthcare costs.  Wouldn’t that obviously violate the rights of doctors and patients?  Until Congress enacted NOTA in 1984, the right of a parent like our client Doreen Flynn to secure otherwise legal medical treatment for her girls had never been conditioned on someone doing something for free.

The history of the Constitution supports unenumerated rights.  Madison presciently warned against enumerating rights because he foresaw what has become a cornerstone of the judicial-minimalist worldview: the argument that the only rights we have are enumerated ones.

Inordinate emphasis on protecting only the relatively few enumerated rights cannot be squared with the Constitution as a whole.  The Bill of Rights was part of a constitutional scheme that was both intended and understood to have created a government of limited, enumerated powers.  Had the authors of the Constitution known that what I’ll call “legislative activists” in the elected branches would, with the eventual approval of the courts, repudiate any structural limitations on their power, then we would likely have a much different Bill of Rights, one that presumably would have expressly identified a much larger set of liberties.  Judicial minimalists should understand that the enumeration of certain rights does not reflect a decision by the Constitution’s ratifiers that the federal government is supposed to be, to borrow Randy’s metaphor, a vast sea of government power with tiny islets of liberty.

Unenumerated rights are in the Constitution.  But here’s something that isn’t:  the rational basis test.  Applying the rational basis doctrine to unenumerated rights emerged out of a series of 1930s cases, particularly Carolene Products and its infamous footnote four, which collectively stand for the proposition that legislation will be upheld as long as there is a rational basis for it.  In an economic liberty case in 1955, Williamson v. Lee Optical held that a law need only have a “conceivable” rational basis, meaning that the actual purpose and effect of the law, and the facts of the case, supposedly don’t matter much.  (Justice Douglas, who wrote Williamson, conveniently forgot about the rational basis test a decade later when he came across an unenumerated right he liked in Griswold v. Connecticut: privacy in the context of contraceptive use).  In modern rhetoric, social and economic legislation subject to an unenumerated rights challenge will be upheld unless the plaintiff can “negative every conceivable rational basis for it,” whatever that means.  Conventional wisdom holds that this is really just code for the government always wins.

This slicing and dicing of rights into different categories with different standards of review, and placing an extraordinarily onerous burden on certain rights, is pure judicial invention.  Conservative-leaning judicial minimalists should reflect on the irony that their philosophy is rooted in the big-government agenda of the New Deal Era, and that among the Supreme Court’s most “minimalist” decisions—in the sense of showing extreme deference to the elected branches—are its most activist ones such as the refusal to enforce essentially any structural limits on federal power (Wickard, Raich).

There is no reason why the government’s legitimate functions—like protecting public health and safety—necessitate a standard of review in which courts are required to ignore pro-citizen facts, invent pro-government facts, and actively try to imagine reasons to uphold anything a legislature has done.  Why is the truth antithetical to constitutional adjudication?

Not even the Supreme Court believes its own rhetoric about blind deference to legislatures.  In the context of rational basis review, the Court pretends that legislative acts embody popular will and were created through a deliberative legislative process that must be respected at all costs.  But in the campaign finance context, the Court uncritically accepts the premise that legislatures are corrupt or seem corrupt, and thus upholds massive restrictions on the First Amendment.  How can the Court possibly reconcile its view of politics in the campaign finance context with its Pollyanna-perspective on legislatures in other contexts?  (For the record, the solution to corrupt and activist legislatures is constitutional limits on their power, not campaign “reform” laws that vitiate rights to speak, assemble, and petition the government).

And if the rational basis test is so great, why not have it for everything?  Pick a right you like and then think about what it would mean for that right to get rational basis review?

Fortunately for liberty and our clients in the bone marrow case, the Supreme Court also doesn’t believe its own rhetoric about the rational basis test.  After all, if the standard were truly that government power will be upheld unless the citizen can “negative” every “conceivable” justification, then citizens would never win rational basis cases. 

But they do.  The Supreme Court has invalidated at least a dozen laws under the rational basis test.  And there are literally hundreds of federal and state trial and appellate decisions doing the same in an array of contexts.  They don’t do it often enough to provide our liberty with the protection it deserves, but courts certainly do protect citizens from irrational, arbitrary, and otherwise illegitimate uses of government power.

Tomorrow, I will discuss principled judicial engagement in the context of the bone marrow case and how to avoid falling into the trap of judicial activism.

Yesterday, I sketched the legal theory behind the Institute for Justice’s challenge to the National Organ Transplant Act of 1984 in which our clients seek to strike down the provision that makes it a serious crime to compensate bone marrow donors.

Today, I’d like to explain the history of NOTA and why the inclusion of bone marrow in the statute is so irrational as to render that part of the law unconstitutional.  This history will set up my posts tomorrow and Thursday in which I’ll discuss the applicable standard of review (rational basis test) and how judges should judge.  I will specifically take on the view, expressed in some of the comments yesterday, that in cases like this, government power should be limited only by the ability of judges and government lawyers to dream up “conceivable” justifications for deprivations of liberty, even if those imaginary justifications have literally nothing to do with what the legislature intended.

We know from 1,500 pages of detailed legislative history why NOTA was passed.  NOTA is the result of a wonder-drug called cyclosporine (a protein found in a Norwegian soil fungus) that can prevent the immune system from attacking a donated organ as a foreign invader such as bacteria.  In short, cyclosporine made widespread organ transplantation possible.

The FDA approved cyclosporine in 1983 and suddenly the big obstacle to organ transplants—especially for tens of thousands on kidney dialysis funded by the federal End-Stage Renal Disease program—was the shortage of organs.  The media was filled with pleas from celebrity spokespeople like Gary Coleman of the sitcom Diff’rent Strokes (a kidney recipient), which transformed organ shortages into a major public issue.

Various committees of the House (led by then-Rep. Al Gore) and Senate held hearings between the summer of 1983 and spring of 1984.  The big issues were how to pay for cyclosporine, who would get it, how to allocate donor organs, which were treated as a scarce national resource to be distributed according to federal priorities, and whether organ transplantation should still be considered experimental (this made a difference to Medicare and private-insurance reimbursement).

In addition to these issues, Congress also focused on organ selling.  H. Barry Jacobs (a Virginia doctor who’d lost his medical license after a mail-fraud conviction in 1977) decided to broker kidney sales between donors he would bring in from the developing world and rich Americans.  This was a plausible business model because everyone has two kidneys, but needs only one, and matching kidney donors and patients is medically easy, just like matching blood donors and patients.

No one liked Jacobs’ idea.  Testimony in both the House and Senate was almost uniformly against kidney sales and markets in other organs.  Congress didn’t like that kidney surgery is invasive (and was perceived as very risky), that donated organs don’t regenerate, and that organs would move only from the poor to the rich.  Congress also believed, naively in retrospect, that altruistic organ donors would be so numerous that organ shortages would not occur.

Congress, however, didn’t intend to criminalize compensation for renewable things.  For example, the bill President Reagan signed on October 19, 1984 went to his desk with a Conference Report prepared jointly by the House and Senate.  This report stated that the “term ‘human organ’ is not intended to include replenishable tissues such as blood or sperm.”  Conf. Rep. No. 98–1127 (Oct. 2, 1984).

But bone marrow is “replenishable” and none of the concerns that motivated Congress to ban organ sales applies to marrow.  Marrow isn’t an organ or a tissue.  It’s just immature blood cells.  Getting these renewable cells is safe (most donations now occur using the same equipment for donating blood plasma or platelets).

In fact, marrow was never discussed in the NOTA hearings.  We have contacted people who were involved with NOTA’s drafting and no one knows why marrow is in the statute.  Our working hypothesis is that a staffer plugged bone marrow into one of the later drafts because marrow is something that in common parlance gets “transplanted” (patients actually get donated marrow cells the same way they get donated blood: through an IV in the arm).

In other words, as I said yesterday, defining “bone marrow” as a “human organ” is not the result of Congress making a hard choice or drawing an imperfect line.  It was sheer error, but an error so significant that it renders part of NOTA irrational and, hence, unconstitutional.

Let’s turn to economics for a minute.  Not only are marrow cells totally different from the solid organs that Congress was worried about, the relief we seek in our constitutional challenge won’t create the sorts of markets Congress was worried about, either.  The basic reason is that it is incredibly hard to match marrow donors and patients (much, much harder than in the organ context).  If donors and patients don’t match at a deep genetic level, the donated marrow will kill the patient or cause a lifetime of intense suffering.

The only practical way to match marrow donors and patients is for doctors to search a national database of about seven million potential donors (mostly blood donors who’ve agreed to be on the list).  If a donor pops up as a match (and if the donor can be found and is willing), the donation occurs anonymously.  Thus, a marrow donor couldn’t go on EBay, for example, and sell marrow because the odds are infinitesimal that a patient would ever need that marrow type, much less need it right now.  (A kidney EBay, on the other hand, would be very effective at matching donors and patients).

It is so hard to match marrow donors and patients that even with a seemingly huge national registry of potential donors, Caucasians find an unrelated donor only 75 percent of the time.  Hispanics and Asians find a donor less than half the time.  African-Americans find a donor only a quarter of the time.  Patients of mixed racial heritage, whose numbers increase every day, face the longest odds.

Our clients don’t want to tackle this shortage with an open market.  They simply want a charity to be able to use funds raised from third parties to compensate donors with a scholarship, housing allowance, or charitable gift.  The goal is to get more people to sign up to the national database, get more people to stay in touch with it when they move, and get more people to follow through with donation if they’re ever asked to donate.  Donors and patients will still remain anonymous and no transaction will occur between them.

Thus, there is no rational basis (and no discernable legislative intent) for applying NOTA—which is about banning open markets in nonrenewable organs that require invasive surgery to procure—to our clients, who want to use a charity to incentivize the donation of marrow—which is not an organ, and is renewable and safe to procure—in a context in which no open market will exist.

Tomorrow: taking on the rational basis test.

Thanks Eugene for letting me guest-blog this week about the Institute for Justice’s latest case: the first ever constitutional challenge to the National Organ Transplant Act (NOTA).  We’re asking the courts to enjoin the Attorney General from enforcing the provision of NOTA that makes it a serious crime to compensate bone marrow donors.

I’ll use today’s post to sketch our constitutional theory.  Then, in the following days, discuss the history of NOTA, the standard of review called the “rational basis test,” the proper role of judges, and by Friday I’ll wrap things up with responses to comments.

Bone marrow transplantation is a lifesaving treatment for 70 deadly blood diseases, including cancers such as leukemia and lymphoma.  Most people who need a transplant need one from a stranger, and tens of thousands have died because they lacked donors.  Our clients want to increase the number of unrelated donors by having a charity offer them a $3,000 scholarship, a housing allowance, or gift to the donor’s favorite charity.  Unfortunately, using scholarships to save lives is considered organ-selling under NOTA, a major federal crime.

We know what Congress intended when it enacted NOTA.  1,500 pages of detailed legislative history make it clear that Congress wanted to outlaw markets in kidneys and other solid organs.  Congress didn’t like that organ surgery is invasive, that donated organs don’t grow back, and that organs would flow from poor to rich on an open market (I’ll discuss tomorrow why the relief we seek won’t give rise to markets).

Congress didn’t intend to criminalize compensation for renewable cells such as blood or sperm.  In fact, the Conference Report the House and Senate jointly sent to President Reagan with the bill he signed said so.

Congress included bone marrow in the statute by mistake.  A “bone marrow” transplant involves the collection of immature blood cells, not the removal of an organ or tissues.  Most marrow cells are now collected using the same equipment and methods for blood donation.  Donating marrow cells is safe and they quickly replenish themselves just like donated blood.  Bone marrow wasn’t discussed in the legislative hearings and was inserted in the statute at the end of the drafting process, probably by a staffer (more on this tomorrow).

Here’s an analogy.  Congress doesn’t like big pets attacking people.  After 18 months of hearings, Congress outlaws selling pets over five pounds, and defines “pets” as “dogs, cats,” and, inexplicably, “pet rocks,” even though “pet rocks” were never mentioned during the hearings, are not actually household pets, and banning their sale doesn’t advance any interest Congress was trying to address by banning the sale of dogs and cats. 

The inclusion of bone marrow in NOTA, like the inclusion of pet rocks in the hypothetical law, is not the result of Congress “making a hard call” or “drawing the line somewhere.”  It was just sheer error, one that has undoubtedly cost tens of thousands of lives.

Of course, not every legislative mistake is unconstitutional.  But a legislative mistake so profound as to render a statutory provision irrational is unconstitutional when it affects liberty.  The Supreme Court has invalidated irrational statutes under the rational basis test at least a dozen times and there are literally hundreds of state and federal cases doing the same thing.

Here’s our constitutional theory in a nutshell.  The provable absence of a rational basis for the bone marrow provision of NOTA means that the statute violates the substantive due process right of doctors, nurses, patients, and donors to participate in safe, accepted, lifesaving, and otherwise legal medical treatment.

Next, throwing people in prison for compensating marrow-cell donors, but not throwing people in prison for compensating blood or sperm donors, violates equal protection because there is no non-arbitrary distinction between these acts.  In all cases, the donor is being compensated for safely donating renewable cells.   The flip side is also true.  Just as it is arbitrary to treat similar things differently, it is also arbitrary to treat solid organs such as kidneys like bone marrow. 

Let me quickly address two objections and let readers know that I’ll explore them in more detail this week.  First, you might say, “who cares what Congress intended, judges get to make up justifications for laws under the rational basis test.”  While it’s true that judges do make up hypothetical rational bases for laws in some cases, that approach only makes sense—to the extent it ever does—when no one knows why a law was enacted.

But we know why NOTA was passed.  Why would we ever want a theory of constitutional interpretation that says in effect, “judges should make up reasons for the government to take away your liberty even when the legislature didn’t intend to do so”?

The second objection runs something like this, “if Congress made a mistake, then it’s up to Congress to fix it, not a judge.”  But the legislature could fix every unconstitutional law.  This isn’t an objection to the bone marrow case.   It’s an objection to judicial review.  I’ll have more to say later about what we at the Institute for Justice think is wrong with reflexive judicial minimalism.

Thanks again Eugene and I really look forward to discussing this exciting case with everyone.