Courts moved fast to overturn Arizona’s prohibition on recording the police within eight feet. A federal judge suspended the law two months after it passed in July 2022, and then struck it down on July 21, 2023, after nobody came forward to defend it.

That’s lightning speed in the litigation world. Yet other laws, equally unreasonable, survive court challenges and stand for years.

The difference is not the level of absurdity or harm. Policymakers routinely invent over-the-top restrictions on safe, normal activities without regard to the Constitution. Examples include restraints on hair braiding in Louisiana, shuttle services in Colorado, and food truck vending in Maryland.

Yet all of these regulations passed judicial scrutiny. Courts acknowledge that laws might be “unjust,” “unfair,” “unwise,” “foolish,” and “ stupid ” but dismiss legal challenges anyway. The reason is a judge-made doctrine called “rational basis review,” which courts have used to excuse legislative nonsense since 1938 .

All the government has to do to survive rational basis review is articulate a legitimate state interest for meddling. No evidence is necessary that laws achieve their intended purpose. Judges accept speculation, good intentions, and after-the-fact rationalizations.

The idea is to protect the separation of powers. Courts want to give the legislative branch latitude, so they look the other way — even when people suffer. “Traditionally, rational-basis scrutiny is extremely deferential and rarely invalidates legislation,” one legal scholar concludes .

Arizona’s eight-foot rule failed fast because it escaped rational basis review. A different standard applies when laws threaten rights that courts deem “fundamental.” These include all First Amendment provisions, including the right to point a smartphone at the police. Other examples include the right to vote, move to another state, and get married.

Disengaged courts suddenly get serious when “fundamental” rights are challenged and start asking tough questions: Does the law accomplish a legitimate purpose? Could the purpose be served another way? Could the law be drafted more narrowly to minimize collateral damage?

Courts call this “strict scrutiny,” and it places a significant burden of proof on the government. A less rigorous test, called “intermediate scrutiny,” is also available to evaluate laws that disproportionately target protected classes of individuals. Either way, victims of legislative overreach have reasonable opportunities to push back and prevail.

Washington, D.C., daycare provider Ilumi Sanchez was not so lucky. Courts recognize the right to earn an honest living, but they don’t consider it fundamental. So they tossed her lawsuit using rational basis review when she challenged a D.C. rule requiring college degrees for daycare providers.

Independent doctor Jay Singleton got the shaft for similar reasons in North Carolina. He owns a state-of-the-art eye clinic but can’t use it for most of the surgeries he performs. The state forces him to travel to a competitor’s facilities instead, creating higher costs and less access for patients. Singleton sued, but the courts tossed his lawsuit using rational basis review.

Not even children and shut-ins are safe. Families have a right to rent from willing landlords, but courts don’t consider it fundamental. So they upheld a “crime-free” law in Granite City, Illinois, that forces landlords to kick out entire households if the police accuse any tenant or guest of wrongdoing anywhere in the city.

As a result, Debi Brumit and her husband and grandchildren faced eviction over allegations that her adult daughter had stolen a vehicle — even though the daughter did not live with them and was never convicted. Brumit sued but could not overcome rational basis review.

Our public interest law firm, the Institute for Justice, represented Sanchez, Singleton, and Brumit. We have taken other cases that ended more favorably for victims of legislative overreach. Most recently, we scored a victory for lactation consultants facing onerous occupational licensing in Georgia.

Yet even when we win, rational basis review stacks the odds against our clients and forces long, expensive legal battles. The lactation consultants had to prevail twice at the Supreme Court of Georgia over a span of five years. Quick wins like the one in Arizona don’t happen once a judge decides someone’s rights are second- or third-tier.

The Constitution avoids a ranking system like this. Some rights are spelled out, and others are unenumerated, but all are important. Indeed, the most fundamental right in any situation is whichever one the government is currently violating.

Renée Flaherty is a senior attorney, and Daryl James is a writer at the Institute for Justice in Arlington, Va.