September 14, 2016

Courts should care about your right to earn a living

By Anastasia P. Boden Attorney

Though the rights to free speech and bear arms get all the press, the right to earn a living might be the most fundamental right of all.  The Fourteenth Amendment protects that right—allowing all of us the opportunity to provide for our families by pursuing a lawful vocation.  There was no better advocate for that right than Frederick Douglass, who passionately described the realization of economic liberty:

“To understand the emotion which swelled in my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin—one must have been in some sense himself a slave… . I was not only a freeman but a free-working man.”

When legislatures infringe that right, it is the responsibility of the court to determine whether the government has a rational reason for doing so.  Nevertheless, time and time again, we see courts defer to the government under what’s called the “rational basis test,” rather than engaging in their duty to scrutinize such laws.  Today, Pacific Legal Foundation filed an amicus brief arguing that courts must give meaning to the right to earn a living by giving teeth to rational basis scrutiny.

In this case, Siena Corp. purchased a property to build a self-storage facility.  The City Council was well-aware of Siena’s plans—indeed it made various changes to its laws to facilitate the process.  Siena obtained site-plan approval based on the Planning Commission’s finding that the project posed no health or safety concerns, and the city manager later wrote that there were no traffic concerns whatsoever.  After the purchase, various residents began to complain to the Council that they perceived that the development would impact their property values.  Based on these complaints, the Council enacted an after-the-fact zoning amendment prohibiting self-storage facilities within 250 feet of a school zone.  Siena’s proposed facility was the only facility that was affected by the rule.  The Council purported to suddenly have safety concerns about locating a storage facility near a school.

Siena argued, among other things, that the zoning amendment violated its right to earn a living.  Under the Fourteenth Amendment, and restrictions on that right must bear some relationship to protecting public health and safety.  Here, Siena argued, there were no such health and safety concerns.  Instead, locals were essentially engaged in irrational NIMBYism.  The group simply didn’t like the aesthetics of the project, and were concerned about their property values.  Any other stated rationales were pretextual, or not supported by the evidence.

Rather than addressing these arguments, the judge said he would “decline the invitation to try to get involved in that battle,” and accept the government’s stated health and safety rationales at face value.  But under the Constitution, it is the court’s duty to scrutinize laws to determine whether a rational reason truly exists for the government’s restrictions on liberty.

In our brief, we recount several instances of the Supreme Court and appellate courts striking down laws under the rational basis test, based on evidence that the plaintiffs presented.  Appropriate use of the rational basis test does not blindly sanction government activity; it looks to the evidence to determine whether the government’s concerns are real, pretextual, or imaginary.  As we note, when courts use an overly deferential rational basis test, the victims are often minorities and other groups that lack the political power to protect themselves through the legislature.  When the legislature fails them—and violates their rights—courts must give them adequate protection by considering plaintiffs’ evidence and scrutinizing the government’s proffered justifications.  If courts call laws “legitimate” merely because the government asserts that they are so, the Fourteenth Amendment will have no meaning at all.

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Siena Corporation v. Mayor and City Council of Rockville, Maryland

Siena Corporation wanted to build a self-storage facility in Rockville, Maryland, but was thwarted when the city, at the behest of NIMBY neighbors, adopted a last-minute zoning change preventing the project. Siena sued but the district court upheld the zoning change as a “rational” exercise of the city’s police power. Siena appealed, arguing that the Due Process Clause of the Constitution and its right to earn a living were violated and that the court must look beyond the government’s bare assertion that it had a good reason for its actions. PLF filed an amicus brief arguing that constitutional protections mean little if the courts are willing to rubber-stamp government action.

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