Can courts dismiss “rational basis” cases without hearing evidence?
My latest law review article is available in the new issue of the George Mason U. Civil Rights Law Journal. Entitled “Rational Basis and The 12(b)(6) Motion: An Unnecessary ‘Perplexity,’” the article tries to resolve the confusion that some courts have expressed about how to resolve a motion to dismiss when the lawsuit alleges a constitutional claim subject to the “rational basis” test. That test says that the plaintiff must disprove every plausible justification for the law—yet courts aren’t supposed to dismiss a case unless the plaintiff can’t possibly prove facts that would plausibly entitle him or her to relief. How do you reconcile the pro-plaintiff 12(b)(6) standard and the pro-defendant rational basis standard?
It’s actually not as hard as some courts have thought. In a series of cases decided immediately after the advent of the rational basis standard, the Supreme Court explained that it’s only a factual presumption, not a legal barrier against judicial review, and that courts shouldn’t dismiss rational basis challenges by assuming that the plaintiff can’t possibly win. In Borden’s Farm Products v. Baldwin, decided the same year as Nebbia v. New York, the Court explained that rational basis
is a presumption of fact, of the existence of factual conditions supporting the legislation. As such, it is a rebuttable presumption…not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack. When the [law]…is called in question…there is a presumption of the existence of that state of facts, and one who assails the classification must carry the burden of showing by a resort to common knowledge or other matters which may be judicially noticed, or to other legitimate proof, that the action is arbitrary. The principle that the State has a broad discretion in classification, in the exercise of its power of regulation, is constantly recognized by this Court. Still, the statute may show on its face that [it] is arbitrary. Or, after a full showing of facts, or opportunity to show them, it may be found that the burden of establishing that the classification is without rational basis has not been sustained.
In the years that followed, the Court repeated this conclusion, in one case even reversing a decision of the Tennessee Supreme Court on the grounds that a person should have the chance to prove that a law that once had been rational had become obsolete and irrational. It was only in more recent years that the Court started expanding the rational basis test into an apparently invulnerable standard. But even so, it has backed off of its more extreme pronouncements. And most importantly, plaintiffs have won rational basis cases—surprisingly often!
But the Borden’s approach was reiterated in a 1992 Seventh Circuit decision called Wroblewski, which held that
A perplexing situation is presented when the rational basis standard meets the standard applied to a dismissal under Fed. R. Civ. P. 12(b)(6). The rational basis standard requires the government to win if any set of facts reasonably may be conceived to justify its classification; the Rule 12(b)(6) standard requires the plaintiff to prevail if relief could be granted under any set of facts that could be proved consistent with the allegations. The rational basis standard, of course, cannot defeat the plaintiff’s benefit of the broad Rule 12(b)(6) standard. The latter standard is procedural, and simply allows the plaintiff to progress beyond the pleadings and obtain discovery, while the rational basis standard is the substantive burden that the plaintiff will ultimately have to meet to prevail on an equal protection claim. While we therefore must take as true all of the complaint’s allegations and reasonable inferences that follow, we apply the resulting “facts” in light of the deferential rational basis standard. To survive a motion to dismiss for failure to state a claim, a plaintiff must allege facts sufficient to overcome the presumption of rationality that applies to government classifications.
In other words, while winning a rational basis case is an uphill battle, it is possible—and a trial court should allow a plaintiff the opportunity to make the necessary showing.
Sadly, this rule has been flubbed by a number of courts. Most notably, the recent D.C. Circuit decision in Hettinga, in which the court affirmed the dismissal of a lawsuit, prior to any factfinding, simply because the government said the challenged law was legitimate. Rule 12(b)(6) does not allow courts to dismiss lawsuits, even rational basis cases, which make out a plausible claim for relief. So judges should not dismiss rational basis cases just because the government claims—without any evidence—that a law is rational.