Separation, Supremacy, and the Unconstitutional Rational Basis Test

80 Pages Posted: 28 Sep 2020 Last revised: 26 Dec 2020

Date Written: September 21, 2020


Using a judicial tool known as the “rational basis test,” federal courts uphold a federal or state statute as constitutional so long as it rationally relates to a legitimate government interest. In this Article, I contribute a new theory to a growing body of scholarship questioning the validity of the rational-basis test. I argue that the test violates the structural separation of powers and the Supremacy Clause of the U.S. Constitution.

Article III of the Constitution vests federal courts — and no other branch — with the “judicial power.” This power entails applying law to decide particular disputes; interpreting the law in order to apply it; and, when faced with multiple conflicting sources of law, applying higher-order law and rendering lower-order law void or unenforceable. On that last point, the Supremacy Clause instructs that the Constitution prevails over contrary federal and state statutes.

I argue that when employing the rational-basis test in a case challenging a statute, courts abdicate part of their judicial power and duty. Instead of fully exercising the judicial power to ascertain the best, fairest, and correct interpretation of the constitutional provision at issue, they merely set a zone of deference, within which all rational interpretations reside. The abdicated judicial power is effectively transferred to Congress or the state legislature (as the case may be), which then exercises the remnant judicial power — much like how Chevron deference results in transfer of judicial power to the executive branch. When used to review a federal statute, this framework violates the separation of powers. And when used to review any statute, it subverts the Supremacy Clause’s established legal hierarchy by elevating the status of lower-level statutes and illegitimately demoting the Constitution.

Keywords: Constitutional Law, Judicial Review, Separation of Powers, Supreme Court, Federal Courts, Chevron, Deference, Article III, Supremacy Clause

Suggested Citation

Diedrich, Joseph, Separation, Supremacy, and the Unconstitutional Rational Basis Test (September 21, 2020). Villanova Law Review, Forthcoming, Available at SSRN: or

Joseph Diedrich (Contact Author)

Husch Blackwell LLP ( email )

190 Carondelet Plaza, Suite 600
St. Louis, MO 63105
United States

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