Railway Express Agency v' New York 1949

1
Railway Express Agency v. New York (1949)

• New Yorks ordinance advertisements on vehicles
  are generally prohibited, but advertising on
  owner-operated vehicles used in the course of
  business is OK
• Why does the Court uphold this classification? Is
  this classification really rationally related to
  the citys interest in traffic safety?
• Under-inclusion what is the under-inclusion here
  and why doesnt it trouble the Court?
• Why is J. Jackson more concerned about
  under-inclusiveness?

2
The Problem with Under-Inclusive Laws

• Justice Jackson, p. 303-4 there is no more
  effective practical guaranty against arbitrary
  and unreasonable government than to require that
  the principles of law which officials would
  impose upon a minority must be imposed generally.
  Conversely, nothing opens the door to arbitrary
  action so effectively as to allow those officials
  to pick and choose only a few to whom they will
  apply legislation and thus to escape the
  political retribution that might be visited upon
  them if larger numbers were affected. What does
  this mean?
• Given his reservations about under-inclusive
  laws, why does Jackson concur in upholding this
  classification?

3
Rational Basis and Its Tolerance for
Under-Inclusive Laws

• Justice Jackson, p.304 there is a real
  difference between doing in self-interest and
  doing for hire, so that it is one thing to
  tolerate action from those who act on their own
  and it is another thing to permit the same action
  to be promoted for a price. What is the real
  difference?
• Why, exactly, does it make sense to treat owner
  advertisers differently from advertisers for hire?

4
The Rational Basis Test

• Ends a legitimate government purpose
• Must it be the real purpose, or is a post-hoc
  purpose enough?
• Is any purpose legitimate?
• Means the challenged classification must be
  rationally related to the purpose
• Should the court defer completely to the
  legislatures evaluation of this? Is it enough to
  uphold the law if there is any conceivable set of
  facts that could support it?
• Is over-inclusiveness and/or under-inclusiveness
  ever problematic enough to be fatal under
  rational basis?

5
The Lenience of Rational Basis Review FCC v.
Beach Communications (1993)

• Court upholds exemption from regulation for
  cable/satellite t.v. systems that serve one or
  more buildings under common ownership or
  management (similar types of cable/satellite t.v.
  facilities serving separately owned buildings
  were not exempt)
• those attacking the rationality of the
  legislative classification have the burden to
  negative every conceivable basis which might
  support it (p.308)
• it is entirely irrelevantwhether the conceived
  reasons for the challenged distinction actually
  motivated the legislature (p.308)
• legislative choice may be based on rational
  speculation unsupported by evidence or empirical
  data (p.309)

6
Why is Rational Basis Review so Deferential?

• Limited judicial competence legislatures are
  better than courts in balancing public policy
  interests
• Limited legislative competence its difficult to
  make laws that always make principled
  distinctions legislative line-drawing often
  reflects compromise rather than principle
• The political process can generally accommodate
  social/economic interests courts should
  intervene only when there is reason to believe
  the political process is unusually flawed
• Courts should exercise deference in order to ease
  clashes with the legislative branch, which would
  otherwise occur frequently

7
Rational Basis with Teeth?? U.S.D.A. v. Moreno
(1973)

• Food Stamp Act excludes any household containing
  an individual unrelated to any other member of
  the household
• Why does the classification fail rational basis
  review? Why isnt it rationally related to the
  goal of conserving scarce resources?
• If the Court is really applying a higher level of
  scrutiny than traditional rational basis review,
  why do you think it is doing so?

8
Questions for next week How Broad is Romer?

• After Romer, how should a court analyze an equal
  protection challenge to the following
• The Dont Ask, Dont Tell policy of the U.S.
  military
• An amendment to a state constitution stating that
  marriage can only exist between a man and a
  woman, and providing that same-sex couples are
  not entitled to any of the benefits of marriage
• A state law barring gays and lesbians from
  adopting children