How the Rational Basis Test Protects Policing for Profit

Abstract

Since the police shooting of Michael Brown in 2014 and the civil unrest that followed, numerous lawsuits have challenged laws that use the government’s ability to impose fines and fees for reasons other than the protection of the public. These challenges have usually raised equal protection challenges to these laws—that is, that the laws punish the poor more harshly than others. The challenges have been unsuccessful, largely because courts examine these laws using “rational basis review,” a standard that is highly deferential to the government and one in which the courts themselves are often required to actively advocate for the government’s position. This article explains these challenges, outlines the critiques of rational basis review, and argues that courts should abandon the use of this standard in cases in which punitive sanctions fall more heavily on the poor than others.