Nebraska exception and the equal protection aspect of the Due Process Clause

[Volokh, Eugene]

               I take it one argument against a special Nebraska exception from certain Medicaid costs would be that the law discriminates against out-of-Nebraska taxpayers and in favor of Nebraska taxpayers.  Such discrimination would easily pass the rational basis test if the justification was something specific to the difficulties that Nebraska residents face (e.g., an exemption for Louisiana taxpayers as a result of Hurricane Katrina).  Likewise, special burdens imposed on the residents or taxpayers of certain states would be justified if they have to do with special problems in those states, or special problems caused by those states.

               The question, I suppose, is whether the rational basis test is satisfied simply by the desire to get a politician's vote, and no other nonlaughable explanation is given for why the state is being treated differently.  Would the mere desire to get a politician's vote constitute a sufficient justification under the rational basis test?  Or is the question moot because there's always something different about each state that can be adduced as a plausible justification for any discrimination in favor or against the taxpayers of that state, no matter how unconnected that is to the actual reason why the provision was added?  Or is it improper to treat the law as discrimination against out-of-Nebraska taxpayers, and proper to treat it only as discrimination against states, which have no rights under the equal protection aspect of the Due Process Clause?

               Finally, what should the conscientious legislator do in this situation, regardless of his prediction about what courts would do?  Should he conclude that there is no violation of the equal protection aspect of the Due Process Clause because there's some conceivable reason for the discrimination?  Or should he evaluate the proposal given the actual reason for the discrimination, and how should he treat that reason if it is clearly nothing more than getting Sen. Nelson's vote?

               Eugene
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