The trouble with rational basis review, part four

• Rational basis review violates North Carolinians’ right to a fair trial
• It also compromises the integrity and the legitimacy of our system of constitutional government
• We need a better approach to judicial review in North Carolina

Note: This is the fourth in a series of research briefs discussing rational basis review, a judicial doctrine that shields economic regulations from constitutional challenges.

Part three of this series explained why courts should stop applying rational basis review to constitutional claims like the ones raised in Singleton v. NC DHHS. This installment explains why courts should abandon rational basis review altogether.

Rational basis review violates North Carolinians’ constitutionally guaranteed right to a fair trial before an impartial tribunal

Article I, Section 18 of the North Carolina State Constitution declares:

Every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor. [Emphasis added.]

Rational basis review violates that provision, and it does so by design. It was adopted by the courts for the specific purpose of ensuring that citizens do not have a remedy when they challenge economic regulations, and it accomplishes that objective by tilting the scales of justice in favor of the state. Singleton v. NC DHHS provides a vivid illustration.

For more than six years, New Bern eye surgeon Jay Singleton has been trying to get a North Carolina court to hear his claim that the state’s Certificate of Need (CON) law violates multiple provisions of the North Caroline State Constitution. Throughout the proceedings, the state has consistently argued that his claim should be dismissed because:

1. As a species of economic regulation, the CON law is subject only to rational basis review
2. The factual findings that the General Assembly appended to the law constitute irrebuttable evidence that it has a rational basis

Three different courts have accepted that argument. Nevertheless, both parts of it are wrong.

As explained in part three of this series, the North Carolina State Constitution begins with a “Declaration of Rights” that lists “the great, general, and essential principles of liberty and free government.” By any definition, those principles and the rights they protect are fundamental, and by their oaths of office, judges ought to be obliged to apply an exacting level of scrutiny to any law that violates any of those principles or impinges upon any of those rights. Courts may prefer a lower standard of review for economic regulations for policy reasons, but there is no textual or historical justification for doing so. More importantly for the purposes of this discussion, applying a lower standard clearly tips the scales in favor of the state.

The courts’ decision to accept the second part of the state’s argument is even harder to justify. The first part dealt with judicial doctrine and constitutional interpretation, which are, at least, matters over which courts wield legitimate authority. The second part, on the other hand, deals with facts, and courts do not have authority to decide factual questions as a matter of law. Instead, such questions must be settled through an adversarial process in which both sides have an opportunity to present their evidence. Instead of providing such an opportunity in this case, the courts accepted without question the findings of fact appended to the CON law and failed to even consider the contrary findings presented by Dr. Singleton.

That would have been a blatant act of favoritism under any circumstances, but it was particularly egregious in this case because all three of the courts did it while reviewing motions to dismiss under Section 12(b)(6) of the North Carolina Rules of Civil Procedure. When courts review such motions, they are supposed to treat the plaintiff’s factual allegations as true. In Singleton, the courts did precisely the opposite. That is decidedly not administering justice without favor.

Rational basis review compromises the integrity of North Carolina’s system of constitutional government

Article XIII of the North Carolina State Constitution states:

The people of this State reserve the power to amend this Constitution and to adopt a new or revised Constitution. This power may be exercised by either of the methods set out hereinafter in this Article, but in no other way. [Emphasis added.]

With both of the methods set out in Article XIII, the amendment process is initiated by the General Assembly. With the first, a two-thirds majority in both houses convenes a Convention of the People, and then the convention may, by a majority vote, adopt a proposed amendment and submit it to the voters. With the second, a two-thirds majority in both houses adopts a proposed amendment and submits it to the voters directly. Neither method involves the courts at all, and both methods require a two-thirds majority of both houses of the General Assembly to begin. Regardless of the method, no amendment can take effect without being ratified by voters of the state.

Rational basis review makes it possible for the courts and the legislature to nullify express provisions of the constitution without bothering with Article XIII at all. In a typical case involving a constitutional challenge to an economic regulation, a court can nullify any relevant constitutional provisions entirely on its own. Once it has decided that rational basis review is the appropriate standard to apply in such a case, it can dismiss it “as a matter of law” without even looking at the factual record.

That approach wasn’t possible in Singleton because in 1971 — some years before the adoption of the current version of tiers of scrutiny doctrine — the North Carolina Supreme Court struck down a previously enacted certificate of need law. To overcome that precedent, the state argued that the findings appended to the new CON law “cured” the previous law’s “constitutional infirmity,” and the courts accepted that argument. Under Article XIII, however, that argument cannot be right. If it were, it would mean that when the General Assembly appended that list of findings, it permanently nullified several express provisions of the state constitution without the approval of two-thirds of both houses and without ratification by the people of that state. Even worse, it would mean that it can do the same thing for any other provision in the future.

Rational basis review is incompatible with North Carolina’s system of constitutional government in multiple ways. It’s time to abandon it altogether and adopt a better approach to judicial review in our state. The last two installments in this series will suggest how that might be done.

For more information see:

• The trouble with rational basis review, part one: A case study
• The trouble with rational basis review, part two: A brief history of judicial review in America
• The trouble with rational basis review, part three: Why federal tiers-of-scrutiny doctrine doesn’t work in North Carolina
• Locke’s July 17, 2026, brief to the North Carolina Court of Appeals (exploring the implications of the North Carolina Supreme Court’s 2024 decision in Kinsley v. Ace Speedway)
• Locke’s April 1, 2026, brief to the North Carolina Supreme Court (explaining why rational basis review is the wrong standard for constitutional claims like the ones in Singleton v. NC DHHS)
• Locke’s Nov. 5, 2025, brief to the Wake County Superior Court panel (explaining why rational basis review is the wrong standard for motions to dismiss)
• Why NC should eliminate judicial deference to state agencies (providing a brief history of the right to a fair trial)
• Restoring the Separation of Powers in North Carolina (discussing how current judicial review doctrine violates the separation of powers)
• Restoring the Right to a Fair Trial in North Carolina (discussing how current judicial review doctrine violates the right to a fair trial)
• Judicial Deference Reform (from Locke’s “North Carolina Policy Solutions 2026–27”)