Litigation » Does Rational Basis Equal Gov't Carte Blanche?

Does Rational Basis Equal Gov't Carte Blanche?


August 31, 2015

Attorney David S. D’Amato considers the question of how we decide if a government action is legitimate, and takes the judicial system to task for routinely applying the lowest possible hurdle for legitimacy, the “rational basis scrutiny.” He quotes a scholar who writes that such rational basis tests have “no foundation whatsoever in the Constitution of the United States,” and claims that the concept was simply made up during a period when courts routinely deferred to legislators and bureaucrats and their arbitrary interference with private enterprise. According to D’Amato, rational basis tests invert due process. The government should have to demonstrate the connection between the law and public health and safety, not merely assert that one might exist.

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