A reference was made to a federal appeals ruling that struck down "granting funeral homes an exclusive right to sell caskets." Not just the usual suspects found it okay, but not me. There is a rational basis to trusting such sales to funeral homes, even if it's overbroad and special interests laden. So it goes. This is not the same as "anything goes." At best, let state courts have a stricter rule, don't nationalize the requirement.
The thread goes into how "rational basis" is applied, including (ugh) "by the left." Yes, the test is applied differently in various cases, the "public meaning" or "legitimate basis" principles factoring in various things:
The court of appeals here seemed more concerned, however, with economic favoritism. And, spent rather little time on the possible reasonableness of the law. The opinion noted that coffins are generally not regulated, so why was it necessary for this specific monopoly to be in place? The item was not treated as particularly dangerous generally. We were assured that this was not "Lochner," but there seemed to be some special rules for those businesses deemed in the public interest idea there all the same. [See what they did there alert: The reference to the Skrupa concurrence by Justice Harlan (more of a brief comment on his position, there being no actual opinion) was neat too -- the point of his concurring separately was that he would leave open more substantive due process review in this area than the majority opinion.]
This seems ironic to me -- the state here arguably assumed funeral homes showed traditionally an ability to handle the item, at least if selling them was made a business. A person could build one for their own use or some institution. But, if it was going to be a business, something like shoddy coffins (handle might break etc.) is more of a concern. And, it was reasonable to entrust it to this business, without spelling out a bunch of rules. Similarly, maybe a fast food company can be entrusted to sell hamburgers more than anyone under the sun.
The whole enterprise here is seen as consistently libertarian and the group here repeatedly finds appealing clients, like low income hairdressers who lose out because of restrictive state requirements or something. On some level, buy that and all, but wary of such broad review by the federal courts. Federal courts might from time to time treat certain economic actors too arbitrarily, even basic rules of fairness not followed. It is a bit different to strike down laws of this nature as not really having a legitimate public interest when there actually is one.
Yes, though a few seem unable to see it, Romer v. Evans can be differentiated somehow. There is a reason for the various lines that do not result in the consistent libertarian rules sought for here. One is that there is a valid reason to apply a stricter test when personal qualities are targeted or fundamental rights with a less public purpose than regulation of such public accommodations are involved. Second is the reality that courts have limited power and influence. The power is used more in certain cases for a reason. The broader use of power here is not only dubious on the merits, but likely to lead to looser rules in places that matter more. Thus, we replace Roe with Casey.
Talking about judicial power and abilities, interesting discussion of so-called "Auer deference" where courts defer to agency interpretations of statutes. The concern is that this is in effect law-making and not by legislative actors, but executive (or independent agencies) officials with less democratic checks on them. On the other hand, they have the expertise and just want "reasonable" means is debatable, especially if generalist judges are doing the deciding. After all, "deference" doesn't mean judges are potted plants, especially if bad faith is shown.
It seems to me that the whole thing is or might if a few justices have their way and the matter is re-examined lead to some sort of rational basis with teeth regime, where agencies are deferred to, except when they are not. The difference a matter of taking various things into account, a stricter test in practice used (even if not expressly stated) in various cases.
The thread goes into how "rational basis" is applied, including (ugh) "by the left." Yes, the test is applied differently in various cases, the "public meaning" or "legitimate basis" principles factoring in various things:
The Constitution has a good share of deliberately open-ended guarantees, like rights to due process of law, equal protection of the law, and freedom from unreasonable searches. These provisions cannot be applied like the requirement for 30-year-old senators; they call for more elaborate reasoning to show why very general language applies in some specific cases but not in others, and over time the various examples turn into rules that the Constitution does not mention.So, more concern is applied to targeting certain groups, even if the groups are not amount those treated with "heightened scrutiny," but such matters might be applied in ways with a certain economic component. So, it is wrong to say, imperfect at best, that "economic" matters alone are treated differently. Still, there is a reason that is assumed and regulating funeral homes or such would be treated differently. Sometimes, like in a case involve laundries, such regulations might have a specific unreasonable character. Or, have some other problem, like violating the Contract Clause or some procedural due process concern.
The court of appeals here seemed more concerned, however, with economic favoritism. And, spent rather little time on the possible reasonableness of the law. The opinion noted that coffins are generally not regulated, so why was it necessary for this specific monopoly to be in place? The item was not treated as particularly dangerous generally. We were assured that this was not "Lochner," but there seemed to be some special rules for those businesses deemed in the public interest idea there all the same. [See what they did there alert: The reference to the Skrupa concurrence by Justice Harlan (more of a brief comment on his position, there being no actual opinion) was neat too -- the point of his concurring separately was that he would leave open more substantive due process review in this area than the majority opinion.]
This seems ironic to me -- the state here arguably assumed funeral homes showed traditionally an ability to handle the item, at least if selling them was made a business. A person could build one for their own use or some institution. But, if it was going to be a business, something like shoddy coffins (handle might break etc.) is more of a concern. And, it was reasonable to entrust it to this business, without spelling out a bunch of rules. Similarly, maybe a fast food company can be entrusted to sell hamburgers more than anyone under the sun.
The whole enterprise here is seen as consistently libertarian and the group here repeatedly finds appealing clients, like low income hairdressers who lose out because of restrictive state requirements or something. On some level, buy that and all, but wary of such broad review by the federal courts. Federal courts might from time to time treat certain economic actors too arbitrarily, even basic rules of fairness not followed. It is a bit different to strike down laws of this nature as not really having a legitimate public interest when there actually is one.
Yes, though a few seem unable to see it, Romer v. Evans can be differentiated somehow. There is a reason for the various lines that do not result in the consistent libertarian rules sought for here. One is that there is a valid reason to apply a stricter test when personal qualities are targeted or fundamental rights with a less public purpose than regulation of such public accommodations are involved. Second is the reality that courts have limited power and influence. The power is used more in certain cases for a reason. The broader use of power here is not only dubious on the merits, but likely to lead to looser rules in places that matter more. Thus, we replace Roe with Casey.
Talking about judicial power and abilities, interesting discussion of so-called "Auer deference" where courts defer to agency interpretations of statutes. The concern is that this is in effect law-making and not by legislative actors, but executive (or independent agencies) officials with less democratic checks on them. On the other hand, they have the expertise and just want "reasonable" means is debatable, especially if generalist judges are doing the deciding. After all, "deference" doesn't mean judges are potted plants, especially if bad faith is shown.
It seems to me that the whole thing is or might if a few justices have their way and the matter is re-examined lead to some sort of rational basis with teeth regime, where agencies are deferred to, except when they are not. The difference a matter of taking various things into account, a stricter test in practice used (even if not expressly stated) in various cases.
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