soliexpo.blogg.se - Tiers of scrutiny

#TIERS OF SCRUTINY HOW TO#
#TIERS OF SCRUTINY SERIES#
#TIERS OF SCRUTINY FREE#

That is, for most rights, the burden is on individuals to prove that the government is violating their rights, rather than requiring the government to prove what it is doing is constitutional. When a person challenges a licensing law for violating his right to earn an honest living the court will require her to prove that the law is not rationally related to any legitimate government purpose. Private property rights and the right to earn an honest living are generally only protected by the rational basis test.

Courts will also require such a showing if the law discriminates against discrete and insular minorities.īut other rights are not so lucky.

#TIERS OF SCRUTINY FREE#

When evaluating laws challenged as a violation of free speech, the courts will generally apply something known as “strict scrutiny.” This means that the court will only uphold the law if the government can prove that it is narrowly tailored to achieve a compelling government interest. Some rights, like free speech, will receive meaningful protection from the judiciary. The level of scrutiny the Court will use, or how closely the Court will look at a law, depends on the right a person accuses the government of violating. The rational basis test is one of the three tiers of scrutiny the Court employs when evaluating constitutional challenges to laws, orders, and regulations. This post will explore what we all hope is the high-water mark of the rational basis test as seen in two Supreme Court cases decided in June 1993: F.C.C.

#TIERS OF SCRUTINY HOW TO#

The second examined how to test became established during the New Deal Era and how it developed from a generally deferential test to an even more deferential “test.” The first explored the origins of the test found in the opinions of Justice Harlan, Justice Holmes, and James Bradley Thayer.

#TIERS OF SCRUTINY SERIES#

* MBE and MEE Essay Flashcards that help you learn and memorize key bar exam concepts, effectively and affordably.This is a third in a series of posts examining the creation and evolution of the rational basis test. For essay questions, this will form the last part of your analysis and your conclusion.

For MBE questions, this part should be easy if you’ve followed all of the steps. Once you've determined the correct level of scrutiny, it's time to apply the law to the facts of the question. 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. Analyzing equal protection questions can be tricky.