In 2016, North Carolina passed “HB2,” also known as the “bathroom ban”—a law prohibiting transgender individuals from accessing public restrooms corresponding to their gender identity—based on the unfounded fear that cisgender men posing as transgender women would assault women and girls in bathrooms. Around the same time, Alabama enacted a punishing immigration law in which sponsors distorted statistics regarding the undocumented population by using the terms “Latino/Hispanic” and “illegal immigrant” interchangeably. These laws are reflective of a larger pattern. In our increasingly polarized political climate, policymakers are affirmatively distorting legislative records and promoting dubious justifications for their policy goals—that is, they are legislating on the basis of “alternative facts”—in ways that pose unique harms for those excluded from the political process. Some scholars have responded to the phenomenon of alternative facts in the legislative process by arguing for an enhanced analysis of legislative motivation. Others argue for a more general reexamination of the relationship between courts and legislative fact. This Article argues instead for a middleground approach whereby courts perform a threshold legal analysis to determine whether a given piece of legislation was enacted over a “broken legislative record.” Should a litigant persuade the court that a challenged act is predicated on a distorted factual foundation, such that no rational legislator could have supported its enactment, the burden would shift to the government to demonstrate that its ends are grounded in some objective measure of basic truth or rationality. If the government cannot do so, the law should fail.
Broken Records: Reconceptualizing Rational Basis Review to Address “Alternative Facts” in the Legislative Process,
73 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol73/iss2/2