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When Judges Judge, It Is Not Activism


There has been spirited debate in the Corner between Anthony Dick and Ramesh Ponnuru over a federal lawsuit that the Institute for Justice (IJ) recently filed challenging the ban on compensation for bone-marrow donors. This debate is part of a larger discussion about the scope of judicial review, particularly the power of judges to declare laws unconstitutional.

IJ’s bone-marrow case challenges a law that is not merely unwise or imprudent, but irrational and arbitrary. For the sake of argument, let’s assume that we can prove the irrationality of banning even modest compensation in the form of, say, a partial college scholarship for marrow donors — let’s assume, in other words, that the ban advances none of Congress’s stated objectives while invading liberty and costing thousands of lives.

The question is whether courts should do anything about this. We believe the answer under the most plausible originalist reading of the Constitution is yes.

Here is a brief overview of the case. Bone marrow is a collection of immature blood cells inside the bones. For many of the more than 100,000 people who are diagnosed every year with a deadly blood disease, a bone-marrow transplant is the only hope for survival.  Although donating marrow cells is safe (most donations use the same procedure as for donating blood plasma) and the lost cells quickly grow back, there are too few donors, especially for minorities. Two thousand people die each year for want of a transplant.

Nevertheless, in the National Organ Transplant Act (NOTA), Congress has lumped bone marrow in with nonrenewable organs (such as kidneys), for which compensation is a crime, as opposed to treating marrow cells like renewable tissues (such as blood, semen, and ova), for which compensation is legal. Again, just assume that we can prove our case – i.e., that there is no rational medical reason to imprison people for five years for compensating marrow donors, but not imprison people for compensating blood or sperm donors.

Ponnuru argues that there should be no judicial remedy here, that we are asking judges to be “activists” and “policymakers,” and that our legal claims amount to a “creative” attempt to insert the courts into an area that should be the exclusive domain of the political branches. His view, shared by an unfortunate number of conservatives, is that the Constitution created a legislature with the unbridled authority to deprive citizens of liberty arbitrarily, at least in the absence of a (sufficiently) enumerated right.

But that’s just wrong as a matter of text, history, and original understanding of the Constitution. Government officials in America have never had the power to act arbitrarily, and among the most important roles assigned to — though not always discharged by — our judiciary is ensuring that the other branches act within the constitutional bounds assigned to them. Irrationally denying citizens their right to participate in safe, effective, lifesaving medical care is not a legitimate exercise of power. It is not only appropriate but vitally important for courts to fulfill their constitutionally assigned role as a check on the arbitrary exercise of government power.

Concerns about judges exercising their power improperly are legitimate, but overstated. Judges are highly deferential to legislatures in almost every realm of constitutional adjudication, including those areas of the Constitution at issue in the bone-marrow case. Indeed, thanks to Supreme Court decisions, it is debatable today whether key provisions of the Constitution intended to constrain legislative or executive authority (such as the takings clause, the contracts clause, and the doctrines of enumerated powers and federalism) impose any meaningful limits at all.

The solution to judicial activism is not a wholesale rejection of judicial review, but meaningful judicial engagement. That is all we are asking for in the bone-marrow case. If we do in fact carry our heavy burden of proving that the law is irrational as applied to the modest nonprofit incentive program our clients want to implement, then we are entitled to a narrow injunction. We are not asking for a sweeping invalidation of the whole law or an open-ended precedent that will lead to the invalidation of the ban on organ sales. A decision for our clients will not create a market in bone marrow, much less a market in solid organs.

We understand that Ponnuru and others might prefer a system in which judges have no authority to review the arbitrary or unreasonable exercise of government power. But that is not our system — at least not according to an unbroken line of U.S. Supreme Court precedents dating back to the founding of the Republic. When Congress acts without reason — as it did in outlawing compensation for bone marrow donors — the Constitution absolutely tells judges to step in. And thank goodness for that.

– Jeff Rowes and Clark Neily are senior attorneys with the Institute for Justice in Arlington, Va.


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