Tiers of scrutiny

QUESTION: Carolene Products and Lee Optical = rational basis/ deferential reivew

ANSWER: I agree.

QUESTION: Griswold= strict scrutiny

ANSWER: Agreed.

QUESTION: Roe= Strict scrutiny

ANSWER: Agreed.

QUESTION: Casey= intermediate scrutiny (it seems that the court is rejecting the use of strict scrutiny for abortion cases in favor of an "undue burden" analysis which i am guessing is some form of intermediate scrutiny)

ANSWER: I would say Casey just does not really plot on this graph. It is different. The "undue burden" standard, in a sense, is a specific translation of the protection of the woman's fundamental right in light of the state's legitimate (and perhaps more than that) interest in the fetus. I'm not sure we can say much more than that in terms of where it "fits."

QUESTION: Also, in regards to footnote 4 in Carolene Products, does Stone mean that in those three situations (the right is enumerated, effects political process, aimed at discrete/insular minorities) that strict scrutiny should be used instead of deferential review or was he merely saying that something more then deferential review should be used w/o actually specifying what standard should be used instead?

ANSWER: Given that this was purely dicta, he was not getting so specific. I think he was generally suggesting that, in these circumstances, some level of more aggressive judicial review, something certainly more than rational basis, may be appropriate. But, given the context, he had no reason to be any more detailed than this.

Dormant commerce clause

QUESTION: My understanding is that regardless of the nature of the law in question (facially discriminatory, discriminatory in purpose or effect), it is subject to a Pike balancing/undue burden test.

ANSWER: I don't think that is right. If the law discriminates against interstate commerce, then it is subject to the far more rigorous "heightened scrutiny" standard. Because this is far more demanding than the "undue burden" test, I don't think there is any need to subject a discriminatory law to the Pike test as well. If it passes the very strict test for discriminatory laws, it will (by definition) pass the less demanding test.

QUESTION: In regards to facially discriminatory laws, the level of inquiry is high, at strict scrutiny, which in turn creates the notion of "virtually invalid per se." In cases involving a law which is discriminatory in purpose or effect, the Pike balancing test is much more deferential, with a lower level of scrutiny. Is my rudimentary understanding at least partially on track?

ANSWER: Just to be clear, the "heightened scrutiny" test (non-protectionist interest, no other nondiscriminatory means) applies to ALL state or local laws that discriminate against interstate commerce, regardless of whether that discrimination is facial, in purpose, or in effect. The Pike test is essentially the lesser, less rigorous standard applicable to laws that do not discriminate against interstate commerce but nonetheless impose burdens on interstate commerce.

State vs. local governments

QUESTION: I realize this is kind of a broad question at this point, but to what extent (if any) does constitutionality differ between local (e.g., county or city) regulation and state regulation? In considering all the topics we’ve talked about this semester, are there any constitutional variances on how local issues are dealt with compared to state issues?

ANSWER: No. For purposes of what we studied this semester (and for virtually all of federal constitutional law), there is no difference between state, city, or municipal governments. They are all considered political subdivisions of the states. (The Camden case is probably the best on this point, of what we studied.) There is a small difference under the Eleventh Amendment, but that is outside the scope of our course.

Enumerated powers

QUESTION: I'm getting confused when trying to justify congressional authority on some power other than commerce, spending, or tax. Would I turn to the necessary and proper clause or section 5 of the 14th Amendment or something else? Basically, I'm fuzzy on how to explain congressional authority when the statute has nothing to do with money.

ANSWER: A couple of response. First, much of what Congress can regulate using its commerce power need not concern money, at least directly. Recall Wickard v. Filburn. Or Gonzales v. Raich. Even the Civil Rights Act cases from the 1960s -- Heart of Atlanta Motel and McClung -- were not really about money, but instead racial discrimination. Second, yes, if the three powers you mention cannot justify the legislation, we have to look elsewhere, such as Section 5 or the treaty power (or the postal roads power or whatever). Just to be clear, though: the Necessary and Proper Clause is not a "power" by itself. It is about means, not ends. So it can never be invoked by Congress standing alone. Instead, it permits Congress wide latitude in selecting appropriate means once it is resolved that the objective is within Congress's enumerated powers.

Privileges and/or immunities

More from my inbox:

QUESTION: I am having some trouble understanding the difference between the P&I clause in the 14th amendment and the Art. 4 Sec. 2 P&I clause. My understanding is that Art. 4 P&I is a limit on states ability to regulate in a way that discriminates on the basis of state residency, but that it only protects certain P&I like the right to common calling/vocation, access to courts/medical care, right to travel etc. My question, is why do the plaintiffs in the Slaughter House cases challenge the monopoly law under the 14th amendment P&I clause? If the Art. 4 clause applies to states, and one of the fundamental P&I it protects is common calling/vocation, then why do they even bother trying to invalidate the law through the 14th amendment?

ANSWER: In short, the plaintiffs in Slaughter-House -- butchers who were forced to use the Crescent City Livestock slaughter-house -- were Louisiana residents. They had no basis for claiming that they had been discriminated against due to their state of residence. And it is only that sort of discrimination that is the concern of the Privileges and Immunities Clause of Article IV, section 2.

QUESTION: I have similar confusion about the Saenz case. Why did the court use the 14th amendment P&I clause to knock down the state law when the right to travel is protected by the Art. 4 P&I clause? Why didn’t they simply invalidate the law using the Art. 4 P&I clause?

ANSWER: Those are different aspects of the right to travel. The one at issue in Saenz concerned the right of interstate migration, the right to move from one state to another and become a resident of that second state. The aspect of the right to travel protected by Article IV, section 2 is the right, as a non-resident, to visit another state and generally to be treated equally. Because the plaintiffs in Saenz were California residents, Article IV, section 2 was simply irrelevant.

QUESTION: In the Slaughter-House decision there is some line about how the 14th amendment P&I clause “was not meant to protect individuals from state government actions and was not meant to be a basis for federal courts to invalidate state laws.” Wasn’t the entire purpose of the 14th amendment to protect people from states? Isn’t the court in Saenz using 14th amendments P&I clause as a basis for invalidating the CA law?

ANSWER: Well, I think that line is a bit of an overstatement. Even the majority in Slaughter-House would have agreed that the Privileges or Immunities Clause of the Fourteenth Amendment is a constitutional restriction on how states treat their own citizens. But they construed it as applying to a very small, relatively insignificant batch of rights. One, though, was the right to interstate migration, and this was the right vindicated in Saenz.

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.

My availability between now and the final exam

Here is a schedule of when I will be holding office hours (and having a review session) over the next two weeks:

Monday, May 4: office hours from 11:00 to 1:00.

Tuesday, May 5: office hours from noon to 2:00.

Tuesday, May 12: office hours from 9:30 to noon, review session from 1:00 to 3:30.

Wednesday, May 13: office hours from 9:15 to 11:15.

I might be free at a few other times, but this is what I can commit to for the time being. Also, I am happy to field questions by e-mail. Those of a general interest I will answer on the course blog.