PastPaperHero | Individual rights - Rational basis review

Learning Outcomes

This article explains rational basis review for individual rights questions on the MBE, including:

Identifying when rational basis, rather than strict or intermediate scrutiny, is the correct constitutional standard in multiple-choice fact patterns.
Stating the precise rational basis test, allocating the burden of proof to the challenger, and recognizing the strong presumption of constitutionality.
Distinguishing rational basis from higher scrutiny by focusing on trigger facts (suspect classes, quasi-suspect classes, and fundamental rights) and the different interest/means language used.
Recognizing the main categories of laws and classifications reviewed under rational basis, such as economic regulation, social welfare schemes, and age, wealth, disability, or occupation-based distinctions.
Applying the rational basis test step-by-step to equal protection and substantive due process challenges, and predicting whether the law will be upheld or struck down.
Spotting classic MBE distractors that incorrectly shift the burden to the government or demand a “compelling” or “important” interest where only a “legitimate” interest is required.
Understanding the concept of “rational basis with bite,” including how evidence of animus or bare prejudice can cause a law to fail even this deferential standard.
Practicing efficient exam strategy by quickly ruling out strict or intermediate scrutiny answers and choosing the rational basis option when the fact pattern fits the default category.

MBE Syllabus

For the MBE, you are required to understand the constitutional standards of review applied to individual rights claims, with a focus on the following syllabus points:

Identification of the appropriate level of scrutiny (strict, intermediate, or rational basis).
Proper formulation of the rational basis test and allocation of the burden of proof.
Application of rational basis review to equal protection and substantive due process challenges.
Typical categories of laws subject to rational basis (economic regulation, social welfare, age, wealth, disability, and other non-suspect classifications).
Distinction between laws that almost always survive rational basis and rare situations where they do not.
Recognition of how rational basis appears in MBE-style questions and common distractor answer choices.
Awareness of special contexts (e.g., federal immigration and foreign affairs, federal alienage classifications) where rational basis is especially deferential.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is the correct statement of the rational basis test?
1. The government must show the law is necessary to achieve a compelling interest.
2. The challenger must show the law is not rationally related to a legitimate government interest.
3. The government must show the law is substantially related to an important interest.
4. The challenger must show the law is not narrowly tailored to a significant interest.
A city passes an ordinance requiring all food trucks to close by 7 p.m. to reduce noise. A food truck owner challenges the law under the Due Process Clause. What is the likely result?
1. The law will be struck down unless the city proves a compelling interest.
2. The law will be upheld if it is rationally related to a legitimate interest.
3. The law will be struck down unless the city proves an important interest.
4. The law will be upheld only if it is the least restrictive means.
Which of the following classifications is most likely to be reviewed under rational basis?
1. Law distinguishing based on race.
2. Law distinguishing based on gender.
3. Law distinguishing based on age.
4. Law restricting the right to vote.

Introduction

Rational basis review is the default constitutional standard for evaluating most government actions that do not involve suspect or quasi-suspect classifications or fundamental rights. On the MBE, this is the standard you will apply most often in individual rights questions, particularly those dealing with economic regulation, social welfare schemes, and classifications based on age, wealth, disability, or occupation.

Most individual rights issues on the exam arise under either the Equal Protection Clause or the Due Process Clauses of the Fifth and Fourteenth Amendments.

Key Term: Equal Protection Clause
The constitutional provision (in the Fourteenth Amendment, and applied to the federal government via the Fifth Amendment) that prohibits the government from treating similarly situated persons differently without adequate justification.

Key Term: Substantive Due Process
The doctrine under the Due Process Clauses that protects certain liberties from arbitrary government interference, even when fair procedures are used; it is used to review the substance of laws affecting all persons.

Both equal protection and substantive due process use the same three levels of review: strict scrutiny, intermediate scrutiny, and rational basis. Strict scrutiny applies to suspect classifications and fundamental rights. Intermediate scrutiny applies to gender and legitimacy. Everything else falls to rational basis.

Key Term: Rational Basis Review
The highly deferential constitutional standard that upholds a law if it is rationally related to a legitimate government interest; the challenger must prove the law is arbitrary or irrational.

On the MBE, once you determine that no suspect or quasi-suspect classification and no fundamental right is involved, you should immediately think “rational basis.” In those cases, the law almost always survives.

Key Term: Suspect Classification
A government classification based on race, national origin, or (usually, for state laws) alienage, which triggers strict scrutiny.

Key Term: Fundamental Right
A right recognized by the Supreme Court as fundamental—such as voting, marriage, interstate travel, or core privacy rights. Government action substantially burdening such a right typically triggers strict scrutiny.

Key Term: Presumption of Constitutionality
The principle that legislation is presumed valid; under rational basis review, courts start from the assumption that the law is constitutional, and the challenger bears the burden of proving otherwise.

A step-by-step exam approach

When you see an individual rights fact pattern on the MBE, a reliable approach is:

Identify the government actor (federal, state, or local) and confirm that state action exists.
Ask whether the law affects everyone (substantive due process) or treats groups differently (equal protection).
Pinpoint the right or classification at issue (e.g., voting, race, gender, age, occupation).
Decide whether that right is fundamental or that classification is suspect or quasi-suspect.
If the answer to step 4 is “no,” apply rational basis review.

Because the examiners aim for clear application of black-letter rules, once you correctly choose rational basis you can almost always predict the outcome: the law is upheld unless the facts highlight pure prejudice or hostility.

When Does Rational Basis Review Apply

Rational basis review is used when a law or government action:

Does not classify based on race, national origin, or state alienage (the main suspect classes for state action).
Does not classify based on gender or legitimacy (quasi-suspect classes).
Does not substantially burden a fundamental right (e.g., the right to vote, marry, travel, or certain privacy rights like contraception or child-rearing).

Instead, the law usually:

Regulates economic activity (prices, licensing, professions).
Distributes social welfare benefits.
Distinguishes based on age, wealth, disability, occupation, or other similar traits.
Applies to everyone but is challenged as arbitrary under substantive due process (e.g., lengthening a training requirement, imposing new safety rules).

Key Term: Non-suspect Classification
A classification that is neither suspect nor quasi-suspect—such as age, wealth, disability, or most occupation-based distinctions—reviewed under rational basis.

Common MBE contexts where rational basis applies:

Economic regulations (licensing, minimum wage, operating hours).
Zoning and land use (when no suspect class or fundamental right is implicated).
Benefits eligibility schemes (who qualifies for certain public benefits).
Age or disability distinctions (e.g., mandatory retirement ages).
Regulations of professions or particular industries (e.g., extra requirements for certain medical technicians).
Laws using neutral criteria (length of residency, criminal record, property ownership) that do not target a suspect or quasi-suspect class.

Remember that both equal protection and substantive due process claims can be evaluated under rational basis:

If a law draws a classification between groups (e.g., under 65 vs. 65 and older), the challenge is usually framed as equal protection, using rational basis.
If a law applies to everyone but is said to be unfair or arbitrary (e.g., making a training program longer for all students), the challenge is substantive due process, also using rational basis unless a fundamental right is involved.

Disparate impact versus discriminatory purpose

Many MBE questions involve laws that are neutral on their face but have a disproportionate effect on a racial or other group.

Key Term: Disparate Impact
The situation where a facially neutral law has a disproportionate adverse effect on a particular group.

Key Term: Discriminatory Purpose
The intent to treat a group differently because of its protected status, rather than for neutral policy reasons.

If a law is facially neutral and there is no proof of discriminatory purpose, courts apply rational basis review, even if the law has a heavy disparate impact on a racial or other minority group. Heightened scrutiny (strict or intermediate) requires evidence of discriminatory purpose, not impact alone. This is a frequent exam trap.

Special contexts: alienage, immigration, and foreign affairs

Alienage is generally a suspect classification for state laws, triggering strict scrutiny. However, two important exceptions frequently appear in bar review materials:

Federal alienage classifications: When Congress or the President distinguishes on the basis of alienage in immigration or naturalization laws, courts apply a very deferential standard—essentially rational basis—because of the federal government’s plenary power over immigration and foreign affairs.
State “political function” positions: A state may limit certain government jobs closely tied to democratic self-governance (e.g., police officers, public school teachers, high-level policymakers) to U.S. citizens under rational basis review.

These nuances matter mostly for choosing the correct level of scrutiny. Once you see “federal immigration law” or “federal alienage classification,” you should lean toward rational basis unless the question clearly points elsewhere.

No fundamental right involved: typical examples

The following interests are not treated as fundamental rights on the MBE and therefore are reviewed under rational basis:

The right to government employment in a particular job.
The right to practice a particular profession without reasonable licensing requirements.
The right to public education or equal school funding.
The right to receive a particular level of welfare or housing benefits.
The right to engage in a specific business or to be free from economic regulation.

Even if these interests are very important to the individuals involved, they are not “fundamental” in the constitutional sense. Regulations affecting them get rational basis review unless a suspect or quasi-suspect classification is also present.

The Rational Basis Test

The rational basis test asks:

Is the law rationally related to a legitimate government interest?

This standard is extremely deferential. Courts do not ask whether the law is wise, efficient, or fair. They ask only whether there is some plausible connection between the law and any legitimate government goal.

Key Term: Legitimate Government Interest
Any government objective that is not forbidden by the Constitution—such as advancing public health, safety, morals, or the general welfare; raising revenue; or preserving economic stability.

Key features of rational basis review:

The government does not need to show that the law actually achieves its goal.
The government does not need to prove that the legislature actually had the stated interest in mind.
The court may hypothesize any conceivable legitimate interest, even one the legislature never mentioned.
The means–ends fit can be weak. The law does not have to be the best or most precise way to advance the interest.

This is sometimes called minimum rationality: as long as a reasonable legislator could have thought the law might help, that is enough.

Classic example (often summarized in bar materials): in a case upholding a state law heavily restricting opticians, the Court admitted the law might be “needless” and “wasteful,” but nevertheless upheld it because legislators could have believed it would protect eye health. That is rational basis in action.

What counts as a legitimate interest

On the MBE, common legitimate interests include:

Protecting public health and safety (traffic rules, licensing doctors and lawyers, restaurant inspections).
Preventing fraud or protecting consumers.
Advancing public morals or community welfare.
Managing the economy and labor conditions (minimum wage laws, rent control, licensing).
Preserving the fiscal integrity of government programs (limiting who gets benefits).
Maintaining orderly elections and stable government.

An interest is not legitimate if it is forbidden by the Constitution—for example, if the government’s sole objective is to harm a politically unpopular group, to suppress a particular religious belief, or to punish the exercise of a constitutional right.

The “rational relationship” requirement

To satisfy rational basis, there must be some logical connection—however loose—between the law and the purported interest. Courts tolerate a great deal of imprecision, including:

Key Term: Overinclusive Law
A law that covers more people or conduct than necessary to achieve the government’s goal (e.g., restricting all drivers under 21, even though only some pose a risk).

Key Term: Underinclusive Law
A law that fails to cover all people or conduct that contribute to the problem the government is addressing (e.g., regulating only some polluters but not others).

Under rational basis, overinclusive and underinclusive laws are usually upheld. Those defects matter far more under strict or intermediate scrutiny, where the fit between means and ends must be tighter.

From an exam standpoint, if a question criticizes a law as “overinclusive” or “underinclusive” but there is no suspect classification or fundamental right, that criticism alone is not enough to invalidate the law under rational basis.

Facial versus as-applied challenges

Key Term: Facial Challenge
A claim that a law is unconstitutional in all its applications, so it can never be validly enforced against anyone.

Key Term: As-Applied Challenge
A claim that a law is unconstitutional as applied to the particular challenger or in a specific set of circumstances, even if it might be valid in other situations.

Under rational basis review, both facial and as-applied challenges are difficult to win:

For a facial challenge, the challenger must show that no set of circumstances exists under which the law would be valid—extremely hard when any conceivable rational purpose will do.
For an as-applied challenge, the challenger must show that, in her specific situation, the law’s application is wholly arbitrary or lacks any rational link to a legitimate interest.

On the MBE, most rational basis questions effectively test a facial challenge—does the law itself fail rational basis? Only rarely will you be asked whether the law is unconstitutional only as applied to a particular person.

State police power and rational basis

Key Term: Police Power
The general authority of state and local governments to regulate for the health, safety, morals, and general welfare of their citizens.

Most rational basis cases involve the state’s police power. When a state regulates economic activity, public health, or social welfare, courts presume the regulation is a valid exercise of police power and apply rational basis review. The challenger must show that the regulation is an irrational or arbitrary exercise of that power, which is rarely the case.

“Rational Basis with Bite”

Occasionally, the Court announces it is using rational basis but scrutinizes the law more closely, invalidating it when the real motive appears to be hostility toward a politically unpopular group.

Key Term: Rational Basis with Bite
A more searching application of rational basis review used in rare cases where a law appears to be grounded in prejudice rather than legitimate reasoning; the Court finds no legitimate interest to support it.

Key Term: Animus
A governmental motive of hostility, dislike, or a bare desire to harm a particular group; animus is not a legitimate government interest.

Examples (as commonly described in bar review materials) include:

Laws targeting “hippie” households by denying them food stamps, where the only apparent purpose is to keep “undesirables” from receiving aid.
Zoning ordinances singling out group homes for persons with intellectual disabilities while allowing similar group living arrangements for other populations.
Constitutional amendments preventing any level of government from protecting gay and lesbian individuals from discrimination.

In each of these situations, the Court stated that it was applying rational basis but rejected the proffered interests as pretexts for bare dislike of the affected group. The key point for the MBE:

You still state the formal test—rationally related to a legitimate interest—but conclude that animus is not legitimate, so the law fails even under rational basis.

On the exam, a fact pattern suggesting that lawmakers or voters acted out of obvious hostility, combined with the absence of any sensible policy justification, is your signal that the law might fail rational basis.

Burden of Proof

Under rational basis review, the burden is on the challenger, not the government.

Key Term: Burden of Proof (Rational Basis)
In rational basis review, the party challenging the law must prove that the law is not rationally related to any conceivable legitimate government interest; the government need not present evidence or prove anything.

Key points:

The government does not have to justify the law or offer evidence.
The challenger must show that no rational legislator could believe the law helps achieve a legitimate interest.
Courts are willing to invent hypothetical justifications to save the law; the challenger must “negate every conceivable basis” that could support it.
This is a very tough standard to meet. On the MBE, if you correctly identify rational basis, the safe assumption is that the law will be upheld unless the facts scream “pure prejudice.”

Key Term: Presumption of Constitutionality
Under rational basis review, legislation is presumed valid; courts defer heavily to legislative judgments in economic and social policy, and challengers bear a heavy burden to demonstrate unconstitutionality.

Exam trap: Many distractor answers incorrectly state that “the government must prove the law is rationally related to a legitimate interest.” That language incorrectly shifts the burden to the government and is wrong for rational basis.

Another exam trap is the use of evidentiary phrases such as “beyond a reasonable doubt” or “clear and convincing evidence” in describing rational basis. Those are standards of proof in trials, not part of the rational basis test. For scrutiny purposes, it is enough to say that the challenger bears the burden of persuasion; do not combine scrutiny language with trial-standards language unless the question explicitly does so.

Types of Laws Reviewed Under Rational Basis

Typical categories of laws reviewed under rational basis include:

Key Term: Economic Regulation
Laws that control economic activity, such as prices, wages, licensing, or conditions for entering a profession or business.

Key Term: Social Welfare Legislation
Laws that allocate public benefits or burdens, such as eligibility rules for welfare, public housing, or disability payments.

Economic regulations
- Business licensing (e.g., licenses for street vendors, taxi drivers, contractors, hair braiders).
- Minimum wage laws and overtime rules.
- Price controls, rent control, or utility rate regulations.
- Restrictions on business locations or hours of operation.
- Rules requiring professional credentials or continuing education for certain occupations.

For economic regulations, rational basis is extremely deferential. Courts generally defer to legislative judgments about how best to allocate economic benefits and burdens in society, even if economists or industry participants think the law is unwise. The classic example is upholding restrictive laws on opticians as a rational way to protect eye health, despite their obvious protectionist effect.

Social welfare laws
- Eligibility rules for public benefits (e.g., requiring a certain residency period).
- Prioritization rules (e.g., which groups get preference for public housing or veterans’ benefits).
- Benefit formulas that are generous to some groups and less generous to others.

Because there is no fundamental right to receive welfare benefits at a particular level, courts review these schemes with great deference. As long as the government is trying to conserve resources, encourage work, assist certain groups, or achieve another legitimate goal, rational basis is satisfied.

Classifications based on age, wealth, disability, or occupation
- Mandatory retirement ages for judges or public employees.
- Distinctions between homeowners and renters for tax purposes.
- Different rules for disabled versus non-disabled individuals (unless another right is implicated).
- Requirements that only licensed professionals perform certain tasks.
- Limitations on benefits for those with certain levels of income or wealth.

Wealth is not a suspect class, and the Court has rejected arguments that poverty alone triggers heightened scrutiny. School funding systems that result in unequal spending across districts, for example, are reviewed—and usually upheld—under rational basis.

Most zoning and land use regulations
- Setbacks, building height limits, and land-use categories (residential vs. commercial).
- Restrictions on the number of unrelated persons who may live together, unless they burden a fundamental right such as family integrity.
- Separation of particular businesses (such as adult theaters) from residential neighborhoods, so long as speech-related issues are not the focus of the question.

Zoning is a classic exercise of state police power. As long as the zoning category has some plausible connection to advancing health, safety, or general welfare, rational basis review is satisfied.

Laws affecting non-fundamental rights
- Regulations of educational or employment opportunities (e.g., changing training requirements, imposing qualifications) when no fundamental right or suspect class is at stake.
- Regulations of recreational activities, business preferences, or local licensing.

In all of these, courts give legislators a lot of room to make economic and social policy choices, even if they seem unwise.

Criminal laws without suspect classifications
- Definitions of crimes and penalties not involving suspect classes or fundamental rights (e.g., making certain conduct a misdemeanor versus a felony).
- Recidivist statutes increasing penalties for repeat offenders.

Unless a criminal law infringes a fundamental right (e.g., free speech, privacy) or targets a suspect class, it will be judged under rational basis. The legitimate interest in deterring crime and promoting public safety almost always suffices.

In short, if you see any of the following in a fact pattern—economic regulation, professional licensing, welfare formulas, age-based rules, or most zoning—the default answer is rational basis review.

Laws That Almost Always Survive Rational Basis

Because the rational basis standard is so deferential, nearly all laws reviewed under it are upheld. The Supreme Court has invalidated laws under rational basis only in rare situations, typically where:

The asserted interest is clearly a pretext; and
The actual motivation appears to be pure hostility toward a group (animus), not a genuine policy goal.

For example, laws that:

Deny benefits to a politically unpopular group solely out of dislike for that group.
Single out group homes for persons with disabilities for special burdens with no plausible safety justification.
Prevent only gay and lesbian individuals from ever obtaining legal protections from discrimination.

In those cases, the Court concludes there is no legitimate interest—animus is not enough—so the law fails even under rational basis. On the MBE, such a law is usually obvious: it targets a disfavored group and the fact pattern tells you there is no plausible neutral policy reason.

In contrast, the Court routinely upholds:

Economic regulations aimed at protecting consumers or ensuring professional competence—even if they are clumsy.
Social welfare schemes that favor some groups over others (e.g., veterans, long-term residents).
Distinctions based on age or disability where there is any rational belief that the trait relates to the regulatory goal.
Federal immigration or foreign-affairs regulations, where the Court applies at most rational basis and is especially deferential.

The following worked examples illustrate typical rational basis outcomes.

Worked Example 1.1

A city passes a law requiring all street vendors to obtain a license and pay a $100 annual fee. A vendor claims the law violates equal protection because it makes it harder for low-income individuals to operate a business.

Answer:
The law draws a distinction based on business status (vendors vs. non-vendors) and has an incidental impact on low-income individuals. Wealth and occupation are non-suspect classifications, and no fundamental right is involved. Rational basis review applies. The city can rely on conceivable legitimate interests—such as regulating business activity, funding inspections, preventing congestion, and protecting public health. The licensing requirement is rationally related to these interests. Because the challenger bears the burden and cannot show the law is wholly arbitrary, the law will be upheld.

Worked Example 1.2

A state law denies public employment to anyone over age 65. An applicant claims age discrimination under equal protection.

Answer:
Age is a non-suspect classification. No fundamental right to government employment exists. Rational basis review applies. The state can point to legitimate interests such as promoting workforce turnover, ensuring physical fitness, or simplifying pension planning. Even if the age cutoff is overinclusive (some people over 65 are fully capable), laws may be overinclusive under rational basis. Because there is a conceivable rational connection between the age limit and these interests, the law will almost certainly be upheld.

Worked Example 1.3

In response to a highly publicized mistake by a medical sonographer, a state legislature lengthens the education requirement for a sonographer’s license from one year to two years. There is no grandfather clause for students already in one-year programs. A student who started the one-year program three months before the law sues, arguing that it is unfair to apply the new requirement to him.

Answer:
This law applies to all prospective sonographers; it does not single out any suspect or quasi-suspect class. There is no fundamental right to a particular occupation or to a specific training length. The challenge is therefore a substantive due process claim reviewed under rational basis. The state can rationally believe that longer education improves patient safety and diagnostic accuracy. The failure to grandfather current students may be harsh, but it is not irrational. Because the legislature could reasonably think that a uniform two-year standard better protects the public, the law will be upheld under rational basis review.

Worked Example 1.4

A city prohibits the operation of “group homes for individuals with intellectual disabilities” in residential zones but allows group homes for college students, seniors, and other populations in the same areas. The city cites “neighborhood character” as its justification. Residents’ only stated concern is that they “do not want that kind of person living next door.”

Answer:
Disability is a non-suspect classification, so the court formally applies rational basis review. However, the record suggests that the real motivation is hostility toward people with disabilities (animus), not a legitimate safety or zoning concern. The city allows other group homes in the same zones, undermining its claimed interest in “neighborhood character.” Because bare prejudice is not a legitimate government interest, and no other plausible interest supports the law, the ordinance fails even under rational basis. This is a classic “rational basis with bite” scenario.

Worked Example 1.5

A state requires all food trucks to close by 7 p.m. to reduce evening noise and litter in downtown neighborhoods. Food truck owners argue that the ordinance violates substantive due process because many restaurants (brick-and-mortar) may remain open until midnight.

Answer:
The ordinance regulates business hours and draws distinctions based on business type, not suspect or quasi-suspect status. No fundamental right to operate a business at a particular time exists. Rational basis review applies. The city can rationally believe that food trucks, unlike fixed restaurants, attract more transient crowds who generate noise and litter and are harder to regulate. The distinction between trucks and restaurants may be underinclusive (other businesses may also cause problems) and overinclusive (some trucks may not), but such imperfections are tolerated under rational basis. The ordinance will be upheld.

Worked Example 1.6

A state funds its public schools primarily through local property taxes. As a result, schools in wealthy districts have much more funding than schools in poor districts. Parents in a low-income district sue, alleging that the system discriminates based on wealth and violates a fundamental right to education.

Answer:
Wealth is a non-suspect classification, and the Supreme Court has held that education is not a fundamental right under the federal Constitution. Therefore, rational basis review applies. The state can assert legitimate interests such as preserving local control over schools, allowing communities to choose their level of taxation and spending, and encouraging local initiative. The funding scheme is rationally related to those interests, even though it produces inequality. Because the challengers bear the burden and cannot show that the system is wholly arbitrary, it will be upheld under rational basis.

Worked Example 1.7

Congress enacts a statute providing that only U.S. citizens may receive a particular federal welfare benefit, although lawful permanent residents pay the same taxes as citizens. A permanent resident challenges the statute as alienage discrimination.

Answer:
Alienage is generally a suspect classification for state laws, but this is a federal statute governing public benefits, an area closely tied to Congress’s plenary power over immigration and citizenship. The Court applies a highly deferential standard—effectively rational basis. Congress can rationally decide to reserve certain benefits for citizens, for example to encourage naturalization or conserve resources for those with a full political commitment to the country. Those are legitimate interests, and the citizen-only rule is rationally related to them. The statute will be upheld.

Worked Example 1.8

A state statute provides that only U.S. citizens may serve as police officers. A lawful permanent resident is denied employment and claims an equal protection violation based on alienage.

Answer:
Although alienage is ordinarily a suspect classification for state law, there is a well-recognized “political function” exception allowing states to reserve certain positions that are intimately related to democratic self-governance (such as police officers, public school teachers, and high-level policymakers) to citizens. For such positions, rational basis review applies. The state can assert legitimate interests in ensuring loyalty to the community and maintaining effective law enforcement by those who exercise coercive governmental powers. The citizenship requirement is rationally related to these interests, so the law is constitutional.

Worked Example 1.9

A city adopts a written examination that all applicants for firefighter positions must pass. Statistical evidence shows that Black applicants pass at a much lower rate than white applicants. The exam does not mention race and is identical for all applicants. There is no evidence that city officials intended to disadvantage Black applicants. An unsuccessful applicant sues, alleging equal protection violations.

Answer:
The exam is facially neutral and applies to all applicants. There is a disparate racial impact, but no evidence of discriminatory purpose. Without proof of discriminatory intent, strict scrutiny does not apply. Because no suspect or quasi-suspect class is explicitly targeted and no fundamental right is involved, the exam is reviewed under rational basis. The city can rationally believe that a written exam tests knowledge important for safe firefighting. That is a legitimate interest, and the exam is rationally related to it. The plaintiff’s equal protection claim will fail.

Worked Example 1.10

A state amends its constitution to provide that “no city, county, or other local government may enact or enforce any law or policy protecting people who identify as members of Group Z from discrimination.” The amendment’s campaign materials focus on preventing “those people” from gaining “special rights,” with no neutral policy justification. A member of Group Z challenges the amendment.

Answer:
Group Z is not identified as a suspect or quasi-suspect class in the Constitution, so the Court formally applies rational basis. However, the amendment broadly denies one group the ability to seek legal protection while other groups may do so. The record suggests the purpose is to disadvantage Group Z out of hostility, not to further any neutral policy. Bare animus toward a politically unpopular group is not a legitimate government interest. Because no other plausible legitimate interest supports the amendment, it fails even under rational basis. This is another example of “rational basis with bite.”

Comparing Rational Basis to Higher Scrutiny (Exam Focus)

To avoid confusion on the MBE, keep the three levels distinct:

Strict scrutiny: Law must be necessary (or narrowly tailored) to achieve a compelling government interest. The government has the burden and usually loses.
Intermediate scrutiny: Law must be substantially related to an important government interest. The government generally bears the burden; the result is mixed.
Rational basis: Law must be rationally related to a legitimate government interest. The challenger has the burden and almost always loses.

You can also think in terms of three key phrases:

Strict scrutiny – “compelling interest” and “narrowly tailored” or “necessary.”
Intermediate scrutiny – “important interest” and “substantially related.”
Rational basis – “legitimate interest” and “rationally related.”

Common exam traps include:

An answer that talks about a “compelling” or “important” interest when the facts clearly involve age, wealth, disability, or economic regulation. Those answers are wrong because they apply too high a level of scrutiny.
An answer that places the burden on the government (“the government must show that…”) when rational basis applies. Under rational basis, the challenger bears the burden.
An answer that says the law must be “narrowly tailored” or “use the least restrictive means” in a rational basis situation. Those phrases belong to strict scrutiny, not rational basis.

A helpful exam mnemonic sometimes used in bar prep:

Rational basis – Rational relation to a legitimate goal.
Intermediate – Substantially related to an important goal.
Strict – Necessary to achieve a compelling goal.

If you memorize the two words associated with each level (rational/legitimate, substantial/important, necessary/compelling), you can quickly eliminate answer choices that mix them up.

Exam Warning

On the MBE, do not apply strict or intermediate scrutiny to laws involving:

Pure economic regulation.
Age, wealth, disability, or occupation.
Social welfare benefits, absent suspect classifications or fundamental rights.

These are reviewed under rational basis unless:

A suspect or quasi-suspect classification is explicitly used; or
A fundamental right (such as voting, marriage, or interstate travel) is substantially burdened.

Additional traps:

Treating public employment or access to a particular profession as a fundamental right (it is not).
Treating mere inconvenience or increased cost as a substantial burden on a fundamental right when the right at issue is not actually fundamental.
Assuming the government bears the burden under rational basis or must show data or empirical proof.
Failing to distinguish between facially neutral laws with disparate impact (usually rational basis) and laws that explicitly classify based on race or gender (strict or intermediate scrutiny).
Misapplying strict scrutiny to federal immigration or foreign-affairs regulations that distinguish among aliens; in those areas, courts typically use highly deferential rational basis review.

Another subtle trap concerns privacy and substantive due process:

Some privacy rights are fundamental (contraception, marriage, parenting), triggering strict scrutiny.
Other aspects of personal life may be protected, but the Court has not always used the “fundamental right” label. The doctrinal language in those cases can be confusing. For MBE purposes, rely on the well-established list of fundamental rights; if the interest is not clearly on that list, rational basis is usually the correct standard.

Revision Tip

If a law does not involve race, national origin, state alienage (outside the political-function and federal-immigration exceptions), gender, legitimacy, or a clearly fundamental right, rational basis review almost certainly applies. Once you choose rational basis:

Place the burden on the challenger.
Look for any plausible legitimate interest and connection.
Unless the fact pattern emphasizes obvious prejudice with no real policy justification, expect the law to be upheld.

One quick mental check used in bar prep outlines is:

Ask: “Is this about RAGEL – Race, Alienage (state), Gender, Ethnicity/national origin, or Legitimacy – or about voting, marriage, or travel?”
- If yes, think strict or intermediate scrutiny.
- If no, think rational basis.

Summary

Rational basis review is the default and most deferential standard for reviewing government regulations under the Equal Protection and Due Process Clauses. It applies to most classifications and regulations on the MBE: economic regulation, social welfare schemes, and laws based on age, wealth, disability, or occupation, as well as many “general” laws challenged as arbitrary.

The test asks whether the law is rationally related to a legitimate government interest. The government can rely on any conceivable legitimate interest, and the fit between means and ends may be loose. Overinclusive and underinclusive laws are generally valid. The challenger bears the burden of showing that no rational legislator could think the law furthers a legitimate interest, and the law enjoys a strong presumption of constitutionality.

As a result, laws reviewed under rational basis almost always survive. Only when a law appears to be driven purely by animus toward a group—and not by any legitimate policy goal—does it fail, even under this lenient standard. For MBE purposes, recognizing when rational basis applies, correctly allocating the burden of proof, and expecting the law to be upheld (absent clear prejudice) will greatly improve accuracy on individual rights questions.

Key Point Checklist

This article has covered the following key knowledge points:

Rational basis review is the default standard for most government actions under equal protection and substantive due process.
It applies when no suspect or quasi-suspect classification and no fundamental right is involved.
The rational basis test asks whether the law is rationally related to a legitimate government interest.
Under rational basis, the challenger bears the burden of proving arbitrariness; the government need not present evidence.
Legislation enjoys a strong presumption of constitutionality under rational basis review.
Economic regulation, social welfare legislation, and classifications based on age, wealth, disability, or occupation are classic rational basis categories.
Overinclusive and underinclusive laws are usually upheld under rational basis.
Facial neutrality with disparate impact, without discriminatory purpose, is reviewed under rational basis.
Laws rarely fail rational basis; when they do, it is typically because they are based on animus, which is not a legitimate interest.
Special contexts such as federal immigration and state “political function” positions often receive deferential rational basis review even when alienage is involved.
On the MBE, misapplying strict or intermediate scrutiny to non-suspect classifications is a frequent source of error.
Correctly identifying rational basis and predicting that the law will be upheld is important for efficient exam performance.

Key Terms and Concepts

Rational Basis Review
Equal Protection Clause
Substantive Due Process
Suspect Classification
Fundamental Right
Non-suspect Classification
Legitimate Government Interest
Overinclusive Law
Underinclusive Law
Rational Basis with Bite
Animus
Economic Regulation
Social Welfare Legislation
Burden of Proof (Rational Basis)
Presumption of Constitutionality
Facial Challenge
As-Applied Challenge
Police Power
Disparate Impact
Discriminatory Purpose

Individual rights - Rational basis review