JURIST Guest Columnist Robert McNamara, an attorney for the Institute for Justice, says that courts utilizing rational basis analysis should look at what the government actually offers in its defense instead of creating hypothetical scenarios that might justify a particular government action…

On February 29, 2012, the US Supreme Court heard oral arguments in Armour v. Indianapolis, a case that could have a huge effect on the way the Court protects unenumerated rights.

The basic background of the case, admittedly, does not seem world-shaking: it is a case about sewers. More specifically, it is about the city of Indianapolis’s decision to build a new sewer system in a northern neighborhood. The city planned to fund it by imposing equal assessments on all affected property owners. People could either pay their full assessments up front, or they could pay in installments over the course of up to 30 years. However, only a year later, the city changed its mind about how it wanted to fund the new sewer. It forgave all the outstanding payments, but it refused to issue any refunds to the people who had paid their bills in full — with the result that some people ended up with a tax bill 30 times higher than their similarly situated neighbor’s tax bill.

To most observers, it is pretty clear what the city’s objectives were: it was more convenient to keep the pre-payers’ money (and also, this way the city got to have more money). The problem is that those are not acceptable justifications for wildly disparate taxation. While it would certainly be easier for the government if it could collect revenue by choosing random citizens and demanding that they empty their pockets, the Constitution’s guarantee of equal protection, tax differences have to be based on something more than just the fact that the government gets money from them.

Watching the judicial system strain to find a reason to uphold these wildly disparate tax rates has been almost head-spinning. An Indiana intermediate appellate court initially held the 30-fold difference in tax rates unconstitutional, refusing to allow the government to make up after-the-fact rationales for their policy. However, the Indiana Supreme Court disagreed: not only should courts take after-the-fact rationales seriously, courts should make those rationales up if the government has not yet thought of them. The court held that the difference in tax rates was fine because it was conceivable that the people paying on the installment plan might be more likely to be poor or middle class, and charging them lower taxes might have been a way of helping out the poor. Not only is there no evidence to support this rationale, but none of the lawyers in the case had even made this argument.

That holding below makes this case about much more than sewers: it is actually about whether courts will be effective protectors of individual rights at all. The problem is, there is actually a good bit of Supreme Court dicta [PDF] suggesting that, in cases where citizens raise rights the courts do not consider “fundamental,” courts applying the rational basis test should make things up in order to ensure the government wins. Indeed, if we take seriously the Supreme Court’s statements that rational basis plaintiffs must “negative every conceivable justification” for a law, then those plaintiffs should always lose — after all, a court should always be able to “conceive” of a hypothetical justification that even the most conscientious attorney has failed to “negative.” However, rational basis plaintiffs do not always lose — in fact, they win quite regularly — and, as I have argued elsewhere, that alone proves this oft-quoted dicta is wrong. The Supreme Court should take this opportunity to make that clear.

The city of Indianapolis, for its part, has been furiously backpedaling from the lower court holding, going so far as to disavow it when Supreme Court Justice Samuel Alito pinned down their counsel (famed Supreme Court advocate Paul Clement) at oral argument.

The city’s lawyers’ abandoning this argument is an excellent start, but it is not enough. The Supreme Court needs to reject it as well and make clear that courts conducting rational basis analysis should analyze the government’s actions in light of the arguments the government actually offers in its defense, not by postulating hypothetical scenarios that might (if true) justify a particular government action.

Indeed, doing anything less would present a serious due process problem in and of itself, as illustrated by the Armour litigation. Of course it is true that nothing in the record disproves the lower court’s speculation that the people paying their assessments on the installment plan were more likely to be middle or lower class than the people who paid up front. However, this is for an obvious reason: until the Indiana Supreme Court seized upon the idea, no one had suggested that might be the case, and so no evidence in the record addresses the question. Ironically, as discovery in a parallel federal lawsuit over the same assessment showed, the opposite seems more likely to be true. People who paid up front were actually frequently senior citizens on a fixed income, some of whom actually took out loans to cover the cost of their up-front payments.

Penalizing the plaintiffs in this case for not introducing evidence about the relative incomes of the affected property owners makes no more sense (and is no more fair) than penalizing them for not introducing evidence about literally any other hypothetical. Perhaps the city of Indianapolis wanted to favor people paying on the installment plan because their homes were more likely to be located on a flood plain, because they lived in higher crime areas or because they were more susceptible to wild animal attacks. All of these possibilities have something in common: there is no reason to believe they are true, and there is no reason for any court to take them seriously.

Allowing courts to credit post-hoc rationalizations that have no foundation in the record makes a mockery of judicial review, and penalizing plaintiffs for being less imaginative than a reviewing judge makes the process seem more like a cruel game than actual litigation. The protection of constitutional rights demands real judicial engagement with the facts and record of each case before them. To provide any less — to allow government officials to hide behind made up rationales — does a disservice not just to the plaintiffs in any given case, but to all Americans who count on the judicial system as an impartial defender of their constitutional rights.

Robert McNamara serves as an attorney with the Institute for Justice. He joined the Institute in August 2006 and litigates constitutional cases protecting First Amendment rights, property rights, economic liberties and other individual liberties in both federal and state courts. He filed an amicus curiae brief [PDF] in Armour on behalf of the Institute, urging the Court to utilize rational basis review to invalidate Indianapolis’s disparate tax rates.

Suggested citation: Robert McNamara, Applying Rational Basis Review in Armour v. Indianapolis, JURIST – Hotline, Mar. 26, 2012, http://jurist.org/hotline/2012/03/robert-mcnamara-armour.php.