The Textual, Structural, and Practical Problems with the Rational Basis Test

Madison Lawyers Chapter - Virtual Event

A core tenet of modern judicial review, the rational basis test amounts to little more than reflexive deference to political actors such as Congress, state legislatures, and executive officials. Drawing on their own scholarship, the works of others, and personal litigation experience, the panelists explain how the test both departs from constitutional text and structure and, in practice, produces problematic and unjust results.


  • Clark Neily is the vice president for criminal justice at the Cato Institute, he formerly served as a senior attorney and constitutional litigator at the Institute for Justice, and authored the book “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government."
  • Joseph Diedrich is an associate in appellate litigation at Husch Blackwell and author of the forthcoming law review article, “Separation, Supremacy, and the Unconstitutional Rational Basis Test” in the Villanova Law Review. 
  • Lucas Vebber is the executive director of the Wisconsin Manufacturers and Commerce Litigation Center. He most recently served as deputy counsel at the Wisconsin Institute for Law and Liberty, and formerly served as general counsel at Wisconsin Manufacturers & Commerce.
  • Jessie Augustyn is the founder of Augustyn Law, the current general counsel to the Wisconsin Senate, and she formerly served as Legal Counsel for Wisconsin Senate Majority Leader Scott Fitzgerald. Jessie will serve as the panel moderator.