Rosenfeld Sp06 Con Law II

Rosenfeld Sp06 Con Law II - I. THREE STANDARDS OF REVIEW...

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1 I. THREE STANDARDS OF REVIEW When a Court reviews the constitutionality of government action, it is likely to be choosing from among one of these three standards of review: 1) MERE RATIONALITY The easiest one to satisfy. The Court will uphold the governmental action so long as two requirements are met: 1. Legitimate State objective: The government must be pursuing a legitimate governmental objective. a. This is a very broad concept – practically any type of health, safety or "general welfare" goal will be found to be "legitimate." 2. Rational relation: Second, there has to be a "minimally rational relation" between the means chosen by the government and the State objective. a. This requirement, too, is extremely easy to satisfy: only if the government has acted in a completely "arbitrary and irrational" way will this rational link between means and end not be found. BOP. The individual who is attacking the government action will generally bear the burden of persuading the Court that the action is un constitutional. OUTCOME. Where the "mere rationality" standard is applied, the governmental action will almost always be upheld. WHEN APPLIED. 1. Substantive due process: So long as no "fundamental right" is affected, the test for determining whether a governmental act violates substantive due process is, again, "mere rationality." a. If the State is pursuing a legitimate objective, and using means that are rationally related to that objective, the State will not be found to have violated the substantive Due Process Clause. b. Most economic regulations (since these don’t affect fundamental rights) will be tested by the mere rationality standard and almost certainly upheld. 2. Equal protection: Mere rationality review is used so long as: a. No suspect or quasi-suspect classification is being used; and b. No fundamental right is being impaired. Thus, a large number of classifications will be judged based on the mere rationality standard, including: a. almost all economic regulations; b. rights that are not "fundamental" even though they are very important, such as food, housing, and free public education. 3. Contracts Clause. 2) STRICT SCRUTINY: At the other end of the spectrum, the standard that is hardest to satisfy is the "strict scrutiny" standard of review. This standard will only be satisfied if the governmental act satisfies two very tough requirements: 1. Compelling objective: First, the objective being pursued by the government must be "compelling" (not just "legitimate," as for the "mere rationality" standard); and 2. Necessary means: Second, the means chosen by the government must be "necessary" to achieve that compelling end. In other words, the "fit" between the means and the end must be extremely tight. (It’s not enough that there’s a "rational relation" between the means and the end, which is enough under the "mere rationality" standard.)
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2 a. No less restrictive alternatives: In practice, this requirement that the means be "necessary" means
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Rosenfeld Sp06 Con Law II - I. THREE STANDARDS OF REVIEW...

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