This morning the Fourth Circuit Court of Appeals decided the case of Colon Health Centers v. Hazel, a case challenging the constitutionality of Virginia’s “Certificate of Need” or CON law for clinics that want to buy medical equipment to help screen people for cancer. The trial court had thrown that case out before hearing any evidence, on the grounds that evidence isn’t relevant in such cases anyway. Thus all the government has to do is to claim, without any facts, that the law being challenged is constitutional, and that’s enough to have a lawsuit dismissed. We filed a brief in March urging the court to reinstate the case.

This is the latest in what appears to be a disturbing new trend of federal courts dismissing lawsuits under the so-called “rational basis” test. That’s the test courts use when deciding whether government restrictions on economic freedom or property rights are constitutional. It requires you to prove that the law is totally unreasonable, and that’s a tall hill to climb. But it can be done, and it has been done, in many cases—if the plaintiff can bring together the evidence showing that the law is patently irrational.

Sadly, courts seem increasingly to be dismissing cases before allowing the plaintiff to gather any evidence at all, on the theory that under the “rational basis” test, government doesn’t even have to provide evidence—it can just claim that the law is okay. That’s what happened last year in the case of the Hettinga dairy family that we asked the Supreme Court to review. We pointed out that “rational basis” isn’t supposed to be a set of magic words that the government can use to get a lawsuit thrown out. But the Court decided not to review that case, and in the Virginia lawsuit, the trial court held that even if the plaintiff could prove that the law didn’t do what it’s supposed to do, and actually hurt medical patients in Virginia, that would be “entirely beside the point,” since real facts don’t matter at all in such cases.

On appeal, we pointed out to the Fourth Circuit that that notion not only makes it impossible to win any rational basis case—and that test applies to most constitutional claims—but it also contradicts the established precedent in the Fourth Circuit, which has held that plaintiffs should at least have the chance to prove their cases.

Sadly, today, that court rejected those arguments and—in an opinion that ignores the court’s prior precedents—affirmed the dismissal of the clinics’ rational basis arguments. The court did allow the plaintiffs to go forward with some other arguments, but on the matter of rational basis, it held that so long as the government “articulates”—that is, merely says, without any facts—that a law is rational, that’s all the Constitution requires. That can’t be right; the Supreme Court itself has said that the rational basis test “is 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…one who assails [it] 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 the classification is arbitrary or that may appear by facts admitted or proved.” Sadly, the Fourth Circuit has shown that it isn’t interested in proof. This runs a dangerous risk of changing the rational basis test into a “Get out of the Constitution free” card. It’s time the Supreme Court stepped in and made clear that evidence matters–even in rational basis lawsuits.

(Cross-posted at PLF Liberty Blog)