In performing the function of judicial review in lawsuits against the government, courts apply various levels of scrutiny to challenged legislative enactments.  For example, in a challenge to just about any act of a Congress, as long as the law does not implicate certain fundamental rights, or discriminate against a class of people because of their immutable characteristics, courts apply what is called the “rational basis test.”  Under this test, courts will essentially take no action as long as there is a rational basis for the legislation.

“What is a ‘rational basis,'” you ask?

As long as a court can conceive of a justification for the law, then it will decline to intervene.  This conceivable justification does not have to be a good one, and the government does not even have to offer, much less prove, one!  This is an extremely deferential, pro-government standard of review.

To demonstrate how crazy this is, have a listen to this recording of oral argument before a three-judge panel of the United States Court of Appeals for the Ninth Circuit in the 2005 Alaska Cent. Express, Inc. v. United States case–jump to the 34:30 remark for an extraordinary conversation between one of the judges and the government’s attorney:

 

In exploring the outer boundaries of whether a particular economic regulation had a rational basis, the court asks counsel whether it’s conceivable that invisible space aliens are flying among us–to which the government’s lawyer replied, “Yes, it’s conceivable.”  The court applied the rational basis test, declined to intervene, and dismissed the case.

Anthony Sanders on Twitter: “”The world is still insane: the rational basis test still exists.” https://t.co/lKjfnnY7bw / Twitter”

“The world is still insane: the rational basis test still exists.” https://t.co/lKjfnnY7bw