Author: Timothy Sandefur
The California Court of Appeal yesterday issued that rarest of decisions—a case invalidating a silly government regulation under the “rational basis” test. The case involves a San Francisco ordinance that prohibits pharmacies—but not grocery stores or club stores—from selling cigarettes. The City claimed the ordinance protected public health because pharmacists shouldn’t be associated with the sale of poisonous cigarettes, but Walgreen’s (which essentially owns all the pharmacies subject to this restriction) pointed out that the pharmacists don’t sell the cigarettes, and the cigarettes aren’t kept in the medicine section of the stores, and grocery stores, that are allowed to sell cigarettes, were still allowed to maintain pharmacy departments.
The Court of Appeal agreed. “The premise underlying the ordinance—that pharmacies selling tobacco products convey tacit approval of tobacco use—has a questionable application to stores such as Walgreens,” the court reasoned, “and it certainly does not support the narrow distinction in the ordinance between stores such as Walgreens and general grocery stores.” Indeed, “[t]he City’s claim that the implied message, or perception, is somehow stronger at a Walgreens than it is as a general grocery store or big box store is purely speculative…. There is no plausible reason to believe that members of the public place any greater reliance on implicit advice regarding the healthfulness of tobacco products conveyed by counter clerks, the corporate structure, or the product mix of a Walgreens than of a Safeway or Costco.”
The reason this is such an important development is because government restrictions on economic freedom—including the right to sell products like cigarettes—are given only the most superficial protection by today’s courts, under the “rational basis” test. As I explain in my new book, The Right to Earn A Living, the rational basis test basically allows legislative bodies free rein to enact whatever restrictions they want. Indeed, it’s not even really a test at all, but an airy mixture of incantations that actually mean nothing: courts simply enchant them when they decide not to enforce constitutional protections. Some courts have held that, under the “rational basis” test, the existence of any factual foundation for a law is “irrelevant” to whether it’s constitutional!
“Rational basis” reasoning is so contrary to common sense that even the extremely minor protection for economic freedom provided by the Walgreen decision is pleasantly startling. Courts have allowed lawmakers such extraordinary leeway that for a court to hold that bureaucrats can’t deprive people of economic freedom on the basis of “speculative” rationalizations is a pretty major development. Here’s hoping that the California Supreme Court doesn’t decide to take this protection away.
More here from Prof. Shaun Martin.