Friday, May 1, 2009

Levels of scrutiny

Several questions in my inbox concerning the applicable levels of judicial scrutiny in particular contexts:

QUESTION: I had a few questions on the level of scrutiny used for Dormant commerce clause and also for enumerated rights. First, the dormant Commerce Clause, for facially discriminatory laws: The language of substantial interest with no reasonable alternative sounds a lot like the intermediate scrutiny of Article IV except that "no reasonable alternative" sounds more demanding than "substantially related to." If anything that sounds a lot like strict scrutiny's necessary, is it a hybrid of the two or is it pretty much intermediate scrutiny?

ANSWER: I would characterize it as a sort of hybrid, tailored to the underlying purposes of the clause. The requirement is (a) a legitimate (i.e., non-protectionist) purpose, and (b) means that are necessary (i.e., no nondiscriminatory alternatives) to achieve that interest. The applicable scrutiny is "strict" in a sense, but only with respect to the means-ends fit, not the importance of the state objective.

QUESTION: For Neutral with Undue Burden under the dormant Commerce Clause: "legitimate interest" seems to imply deferential scrutiny but the Pike balancing is much more strict than a "rational basis" for the law.

ANSWER: I'm not sure I agree. I would characterize the Pike test as fairly deferential.

QUESTION: Is the "legitimate interest" portion really the same interest as deferential scrutiny?

ANSWER: I think it is the same as that for discriminatory state laws. The purpose the law serves, in this context, must be something other than economic protectionism.

QUESTION: Are all currently incorporated enumerated rights given strict scrutiny? What about non incorporated enumerated rights when it is a federal law that's at issue?

ANSWER: This is complicated. With respect to specifically incorporated rights appearing in the first eight amendments (such as the right to counsel, the right to confront witnesses, or the right to be free from unreasonable searches or seizures), the Court has worked out clause- or right-specific doctrines. I'm not sure I would really characterize those doctrines as "strict scrutiny"; that would be painting with too broad a brush. Certainly the governmental action gets close judicial examination. But it is not the same sort of analysis as what we have seen with respect to the rights deemed "fundamental" as a matter of due process that we have studied, where the Court asks whether the government's interest is compelling and whether the means are narrowly tailored. Perhaps it is strict scrutiny in some sense, but it is translated into a particular doctrinal context, such that the constitutional analysis proceeds differently. You will see this in great detail if you take criminal procedure. And you will see it next fall with respect to the First Amendment.