Does the classification satisfy the appropriate level of scrutiny? It's important for you to understand how and when to apply each. There are several levels of scrutiny the court can apply depending on the class of people affected: strict scrutiny, intermediate scrutiny, or rational basis. There is a discriminatory motive or purpose behind the law, in which case P must show that there's a disparate impact and discriminatory purpose.The law is neutral on its face but is applied in a discriminatory manner (e.g., only women are arrested under a facially neutral law). By its terms, the law treats classes of people differently There are three ways to prove a discriminatory classification: That’s the easy part, but the harder part is proving that classification. Make sure there is some classification that is discriminating against someone or a group of people. Is there a discriminatory classification? With the preliminary analysis out of the way, you can start your substantive EP analysis which consists of three questions:ġ. Make sure you cover this on essays and be careful about getting tripped up on MBE answer choices that exploit this wrinkle.īottom line: be clear as to whether the 14th Amendment applies directly (state/local governments) or is incorporated through the 5th Amendment (federal government). When it comes to federal action concerning equal protection, the 14th Amendment only applies by incorporation through the 5th Amendment Due Process clause. The 14th Amendment itself applies directly only to state and local governments. However, you must remember the following: So, before you jump into levels of scrutiny, first make sure the government is involved in the discrimination at hand.Īs we know, any equal protection issue implicates the 14th Amendment. Preliminary Analysisīefore we get to the substantive EP analysis, you need to work through two quick steps:Īs we know, generally speaking when it comes to equal protection the Constitution only applies to government action, whether on the federal, state, or local level. But here's the good news: whether you encounter them on the MBE or in an essay, you can tackle any EP question by applying this straightforward, step-by-step analysis. The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.Analyzing equal protection questions can be tricky. By abandoning the emerging tiers of scrutiny and instead employing a lockstep approach to the review of enumerated powers, this Article suggests, federal courts would reduce opportunities for strategic behavior by judges and elected officials. At the same time as it creates negative externalities, therefore, the practice of tiered review for enumerated powers lacks any compelling normative justification. Closely examining each of those six justifications for stratified review, it finds all of them wanting. This Article then identifies six potential justifications for the Court's emergent practice of calibrating judicial review differentially by enumerated power. Drawing on political science scholarship, social choice theory, and public choice theory, it demonstrates that the Court's use of tiers of scrutiny has deleterious effects on judicial and legislative incentives and behavior. Having demonstrated the existence of tiers of scrutiny for enumerated powers, it then evaluates their use in enumerated powers jurisprudence. This Article's threshold contribution is a comprehensive documentation of variation in doctrinal formulae concerning the standard of review in enumerated powers cases. This observed heterogeneity in the judicial demand for legislative rationality and empirical evidence is quite distinct from questions of how broadly or narrowly the substance of each enumerated power is defined. Variation in the standard of review generates both synchronie and diachronic oscillation in the quantum of empirical justification and means-end rationality demanded of Congress. This is so because the Court not only delineates each power's substantive boundaries differently but also applies distinct standards of review to the various legislative powers enumerated in Article I and elsewhere in the Constitution. The inquiry is motivated by the Court's recent ruling on the federal healthcare law, which demonstrated that the national legislature's election among its diverse textual sources of authority in Article I can have large, outcome-determinative consequences in constitutional challenges to federal laws. This Article identifies and analyzes the recent emergence of a "tiers of scrutiny" system in Supreme Court jurisprudence respecting the boundaries of Congress's enumerated powers.
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