In,Village of Euclid[1]the court readily designed a test that would allow for the land use restrictions of local governments to change, alter, and ideally influence the growth of the city in a manner that pleased the “board.” A law is unconstitutional only if it is “clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.”[2]This language, very broad, requires the plaintiff to come forth with their complaint. In doing so, the only requirement of the government is to say, here is our interest in public health, morals, and general welfare, off you go. Furthermore, the only time this isn’t the case, and rarely, are when fundamental rights are involved. As discussed in City of Ladue v. Gilleo, where free speech implications were involved, invoked the strict scrutiny test.[3]Surely a test requiring nothing more than a “general welfare” or a “morals” basis that entrenched itself in 1926 would rear its ugly head to challenges of today. The test is no longer viable without the government providing its reasoning first, before placing communities in a position to suffer a city boards innocuous decision based on the “general welfare.”
A finger on the scale for the people by the elimination of the rational basis test as a cheat code is the only solution. A more reconcilable step in the right direction would be to shift the burden to the government. Shifting burden standards prior to forcing litigation to the plaintiffs who are the ones who take the brunt of government action. Certainly, the government has an interest in not being hauled into court to defend its actions upon every occasion, but too often rational basis is used too frequently to justify any and all government acts so long as a fundamental right is not involved, by God the morals of the town deserve the removal or exclusion of persons wishing to express themselves, or better yet, live in a new neighborhood. Herein, the burden should reside with the government, before action is taken. The government should decide what burden its willing to take on by the actions the board deems worthy of the litigation to follow, and not the complaining party trying to determine if they should take action against heavy handed governmental acts.
The complaint typically stems from Constitutional Takings.[4]Though in most “takings” the burden resides with the government, in some situations, that burden is the plaintiffs.[5]Rational basis in taking situations typically stems after the fact. A plaintiff would have to litigate whether the taking was justly compensated and whether the taking was for public use. If the government can prove any kind of public interest in response to these complaints, the taking is valid. This, alone, would be a reason to eliminate the rational basis test. This may place the government in court more often than not, but it would possibly, and assumingly, place the government under a burden to show the public use and just compensation well before the taking occurs. Entrenching the fundamental right of land ownership well into the bounds of strict scrutiny. If the government has such a public interest, should not that public interest be measured and known prior to the taking?
Strict scrutiny and intermediate scrutiny lay the burden with the government to defend the policy as that of public interest. This is seemingly the correct path for all governmental action. Elected officials placed in office to enact government will should not be allowed to provide a minimal “public interest” only in response to a complaint by a constituent. The government and elected officials should have in mind the constituents affected and explain their actions and allow the people to respond before the enactment of regulations that may lay a burden on individual liberty even those things that are trivially labeled under the rational basis test. Some of the exceptions to governmental action are those that require expediency and those are typically known to the public most likely affected. Strict scrutiny being the hardest to overcome, it requires the government to show, upon the finding that a fundamental right is at play, that their interest outweigh that right. Intermediate scrutiny being the spaghetti–on–the–wall, is the middle ground between the two tests. The rational basis test, however, is the government saying, show me that I did wrong. This is a cheat code to deterring meaningful litigation among persons who may be burdened by governmental actions, tipping the scales in favor of the government in almost all issues that fall under this test.
The government in these situations is almost always in a better position to litigate and defend against their enactments. Should the government not then be burdened with showing that they do not deserve future litigation? It is irrational to enact such regulations under a “moral” and “general welfare guise” and then expect the people to fight you over whether it was truly for the general welfare. Prove to the constituents that your plan is for the general welfare before litigating and in time it may even save local governments money and resources.
[1]Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
[2]Id.
[3]City of Ladue v. Gilleo, 512 U.S. 43 (1994).
[4]See Kilo v. City of New London, 545 U.S. 469 (2005).
[5]Rational Basis Test, burden of proof as to the interests, lies with the claiming party.
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