- The Rational Basis Test [No. 86]
- Constitutional Law: Standards of Review (Rational Basis, Intermediate Scrutiny, & Strict Scrutiny)
- What are the strict scrutiny, intermediate scrutiny, and rational basis tests
- What are the rational basis, intermediate scrutiny, and strict scrutiny tests?
- Is this policy constitutional? Strict scrutiny, intermediate scrutiny & rational basis review
- The Levels of Scrutiny
- The Rational Basis and Strict Scrutiny Tests
The Rational Basis Test [No. 86]
So the rational basis test is the baseline test that courts use to determine whether,statutes are consistent with both due process and equal protection.,Its the baseline test that all laws have to pass.,It requires that every law be first hypothetically designed to serve a legitimate governmental,purpose, something that we think government should in fact be able to do.,And it further requires that that law be reasonably related to that purpose.,That is, it requires that the law in some way actually serve the purpose for which it,is enacted.,The presumption is that a law is in fact constitutional, and therefore the burden is on anyone challenging,that law to show that it was not established for a legitimate purpose or that it doesnt,reasonably further that purpose, and thus doesnt really deserve to be a law.,Many writers of the American Revolution argued that the acts, such as the Stamp Act, were,in fact not law because they were contrary to reason.,That is, they did not have a rational basis.,Probably the best formulation of what I like to call the classic rational basis test comes,from 1880.,There was a case soon after the Fourteenth Amendment applied due process and equal protection,to state laws.,Its Mugler versus Kansas, dealing with the sale of liquor.,And in that case, the Court upheld the statute, as most statutes under rational basis are,in fact valid statutes, but it said, “Not just everything that the legislature passes,is worthy of being a law.,Rather, it does have to reasonably further some legitimate interest.”,Then in 1938, Carolene Products established the tiered scrutiny that we have today.,That is, this idea that under the due process clause, we have strict scrutiny for laws that,interfere with fundamental rights, but rational basis scrutiny for laws that just affect any,other rights we have that are non-fundamental.,So in 1952, the Supreme Court decided a case from Oklahoma, which is Williams versus Lee,Optical.,An Oklahoma Law was, uh, measured to protect optometrists from these new opticians who,were pushing into their business.,And in that case, what the Court adopted was what we tend to call the modern version of,the rational basis test.,And under this modern version, although the elements of the rational basis test are the,same, the test for establishing those elements are not.,So, the legitimate interest doesnt actually have to be the interest that motivated the,passage of the statute.,In fact, it doesnt even have to be an interest that the legislature even considered.,It can be anything that courts think might be legitimate.,Then the second element of the test, which generally requires that the law be reasonably,related to that interest, its enough if the legislature might have thought that it was,reasonably related.,That is, it can be totally unrelated.,All we care about is that they reasonably thought it might be.,And so the rational basis test today has in fact become a completely hypothetical speculative,test.,Theres no burden on the government to introduce anything.,The burden is rather on the challenger to hypothetically think what are the multitude,of reasons that might justify this law.,And then courts have to speculate, “Could a reasonable legislature have thought that this,would further this legitimate interest?”,There is in fact a fairly robust debate in the legal academy dealing with rational basis.,Now, there have been people who have argued for a higher standard than even the classic,rational basis test for all rights.,Any statute that affects life, liberty, property, is unconstitutional unless the government,can show that there is a valid reason for it.,There are a number of legal scholars that are in favor of a rational basis test that,is more robust, that is closer to the classical formulation.,There are some legal scholars who adhere to this idea that we dont actually need a rational,basis test.,If a law isnt affecting a suspect class or isnt affecting the fundamental right, then,the government should be pretty much free to do whatever it wants.,The rational basis test is the default level that all laws must pass under due process,scrutiny.,So, any law that affects life, liberty, or property has to, at its bottom, hypothetically,serve some legitimate governmental purpose and it must be reasonably related to the interest,that its trying to further.,If it doesnt do that, then it fails the rational basis test.
Constitutional Law: Standards of Review (Rational Basis, Intermediate Scrutiny, & Strict Scrutiny)
in this lesson were going to go over,the three most common judicial standards,of review that are applied by the courts,to determine the,constitutionality of laws of course we,have rational basis intermediate,scrutiny and strict scrutiny these are,the standards of review that courts are,going to most often apply to determine,whether or not a law is constitutional,so if were looking at a law school fact,pattern or a bar exam fact pattern and,constitutional law how does this play,out how do we see this tested just from,a big picture,well typically when were seeing,rational basis intermediate scrutiny,strict scrutiny were seeing these,concepts really tested were going to,most often see it in the context of,individual rights think about your free,speech analysis your equal protection,analysis your due process analysis you,know these are where were really going,to want to have a good understanding of,what these standards of review are and,how to kind of apply them to determine,whether a law is constitutional or,not so if were thinking in that context,of kind of individual rights our free,speech analysis our due process analysis,our equal protection analysis how does,this play out on a fact pattern how do,we see this actually tested,well typically what were going to have,is first the government is going to,perceive a problem,okay usually this is some kind of,societal problem and we dont really,care whether the government is right or,wrong you know whether its a real,problem or not a real problem you know,thats really not for us to decide all,that we care is the government has in,their opinion perceived some kind of,problem and whats typically going to,happen is the government of course is,going to want to alleviate this problem,so the government sees a problem their,objective is going to be hey lets,alleviate this problem so how do they,alleviate it well in these fact patterns,were going to see,the government basically pass a law to,try to achieve this objective of,alleviating whatever the problem is that,they saw so the government sees a,problem their objective is to alleviate,the problem so they pass a law to,accomplish this objective of alleviating,whatever problem they have perceived,then what happens well were going to,need a plaintiff okay so somebodys,going to be negatively affected by this,law this law is going to get passed and,the way its applied to somebody in our,fact pattern its going to cause that,person to sustain some kind of injury,right were going to have a plaintiff,who in some way is sustaining injury,from whatever the law is okay its going,to negatively affect our plaintiff in,some way so of course the plaintiff is,going to want the law struck down if,were in constitutional law theyre,probably going to challenge the,constitutionality of the law in order to,try to get it struck down and they could,do this on any grounds right they could,challenge it under the first amendment,because this is a violation of the free,speech clause of the first amendment it,should be struck down this is a,violation of the due process clause of,the 14th amendment it should be struck,down its a violation of the equal,protection clause of the 14th amendment,it should be struck down right whatever,the challenge is okay well deal with,that,but,what happens at the end of the fact,pattern once weve seen kind of all of,this right the government has perceived,a problem the governments objective is,to alleviate the problem so to,accomplish this objective the government,passes a law this law negatively affects,a plaintiff so the plaintiff challenges,the constitutionality of the law under,some grounds and then we get to the,bottom of the question and,the call of the question is basically,going to ask you to play judge right,its going to say hey,whoevers taking this constitutional law,exam play judge and determine whether,the law is constitutional or not,and the good news is you usually have a,standard of review that you can apply to,that law to determine whether or not it,is constitutional okay the supreme court,has kind of come up with these standards,of review these frameworks these guiding,principles that are used to determine,whether laws are constitutional or not,so you will apply,either rational basis strict scrutiny or,some form of intermediate scrutiny to,determine whether or not the law is,constitutional,some of you may be wondering,well how do we know which standard of,review to apply how do we know when,were applying rational basis how do we,know when were playing strict scrutiny,how do we know when were applying some,version of intermediate scrutiny and,this is a very complicated question,right this is what were going to spend,the majority of our time in all of our,lessons on individual rights exploring,you know if you think about our free,speech analysis our equal protection,analysis our due process analysis really,the whole purpose of those frameworks so,step-by-step analytical frameworks the,conclusion were trying to get at is,what level of scrutiny are we actually,applying,okay so thats why,you know we go through and have all of,those discussions and lessons the whole,purpose is to try to figure out what,standard of review is the court going to,apply to determine whether or not the,law is constitutional so the short,answer to your question if youre,wondering how do i know which standard,of review to apply its kind of like,unfortunately or fortunately you have to,watch all of our lessons on,constitutional law all of our lessons on,individual rights all those analytical,frameworks we have its basically the,process youre going to have to follow,to determine which standard of review,were applying so thats not really what,were going to focus on in this lesson,thatd be impossible its like trying to,cover a hundred years of jurisprudence,and constitutional law in one lesson,what were really going to focus on here,is once we know what standard of review,were applying weve worked through all,of our analytical frameworks and weve,determined were applying strict,scrutiny to determine whether the law is,constitutional or not in this lesson,what were going to focus on is okay,well how do you do that how do you apply,strict scrutiny to that law to determine,whether or not its constitutional,thats going to be the focus,okay and also another benefit of a,lesson like this is we can also think,about this video this lesson is kind of,just like a glossary of terms you know,as we work through,our lessons on individual rights,many times youre going to hear me,quickly in passing say things like and,then so for these reasons the court,applied rational basis to the law and,ultimately the law was upheld as,constitutional and,if weve seen this lesson i dont have,to explain rational basis every time i,say it i dont have to explain strict,scrutiny every time i say it after,watching this hopefully we all have a,good understanding of these concepts so,its kind of like a glossary of terms,lesson as well and itll also be,basically like the final step in all of,our analyses when were thinking about,free speech equal protection due process,what were going to cover in this lesson,is usually kind of the last thing we do,at the conclusion of our analysis so,its a good you know glossary of terms,video to have so we just know what these,concepts mean and its also going to be,helpful at the end of our analyses,okay but for those of you that are like,me and you just want a big picture kind,of,idea,of when we apply these standards of,review of course the only way that we,know when were applying which standard,review is to watch all of our lessons on,constitutional law and to understand all,of those analytical frameworks but if,youre just looking for a big picture,idea one thing to keep in mind is,typically,as we move this way on the board,basically were,seeing an increase in the constitutional,value of whatever the area of law is,thats being regulated by the government,so,if the government is r
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What are the strict scrutiny, intermediate scrutiny, and rational basis tests
in this video we will discuss how the,rational basis intermediate scrutiny and,strict scrutiny tests differ the strict,scrutiny intermediate scrutiny and,rational basis tests are all tests that,a court applies to answer a question,with each test the court is trying to,answer the question is a law,constitutional or not for each test the,court is basically asking two questions,or we can say the court is applying two,factors our first factor is why did the,government pass the law was the law for,a legitimate purpose was the law for an,important government purpose or was the,law for a compelling purpose its,easiest to show that a law was necessary,for a legitimate purpose its much,harder to show the law was needed for an,important purpose and its most,difficult to show that a law was,necessary for a compelling government,purpose with a rational basis test we,only ask whether the law had a,legitimate purpose the intermediate,scrutiny test is significantly more,challenging than the rational basis test,because now the government must show,that the law had an important purpose,the strict scrutiny test is most,challenging for the government because,the government must demonstrate that the,law was necessary for a compelling,purpose the second factor that courts,apply is what are the methods that the,law uses to achieve the government,purpose,is there a rational relationship between,the methods and the purpose more,challenging is there a substantial,relationship between the methods used by,the law and the purpose the law is,intended to achieve and finally most,challenging is the law narrowly tailored,is it the least restrictive way that the,government can use to achieve its,purpose when we put these factors,together we have our three tests the,rational basis test is the easiest test,for the government we only ask whether,the law had a legitimate purpose and,whether there is a rational relationship,between the methods used in the law and,that purpose the intermediate scrutiny,test is more challenging for the,government now the government must show,that the law had an important purpose,and that the methods used are,substantially related to achieve that,government purpose finally strict,scrutiny is the most challenging test,for the government because the,government has to prove that the law was,necessary to achieve a compelling,purpose and that the methods used in the,law are the least restrictive way to,achieve the purpose each test helps a,court answer the same question is a law,constitutional or not and each test,applies the same two factors whats the,purpose of the law and what are the,means used by the law to achieve that,purpose to discuss court tests for,constitutionality or any other matter,related to US law stop by the message,board and please visit my blog also feel,free to send me an email or to some,your comments below
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What are the rational basis, intermediate scrutiny, and strict scrutiny tests?
in this video we will introduce the,rational basis intermediate scrutiny and,strict scrutiny tests the rational basis,intermediate scrutiny and strict,scrutiny tests are all tests that courts,apply to determine constitutionality but,keep in mind there are other tests,courts apply these tests to determine,whether a law or government activity is,constitutional or not for each test the,courts apply two factors first what was,the governments purpose in creating the,law and second how does the law,accomplish this purpose,so our first factor asks why did the,government pass the law how critical was,the purpose was it for a legitimate,government purpose an important purpose,or was it for a compelling government,purpose its easiest for a court to,conclude that a law had a legitimate,purpose but its significantly harder,for the government to demonstrate that a,law had an important purpose and its,most difficult for the government to,demonstrate that a law had a compelling,government purpose our next factor is,what is the relationship between the law,and the governments purpose how does,the law achieve the purpose at the,easiest level we only need a rational,relationship between the law and the,governments purpose more difficult is,to show that there is a substantial,relationship between the law and the,governments purpose,and most difficult is to show that the,law is narrowly tailored or the least,restrictive way to achieve the,governments purpose and now we have our,three tests the rational basis test is,the easiest challenge for the government,because the party challenging the law,must show that there is no rational,relationship between the law and a,legitimate government purpose the,intermediate scrutiny test requires the,government to demonstrate that there is,a substantial relationship between the,law and an important government purpose,most difficult for the government is the,strict scrutiny test which requires the,government to demonstrate that the law,has a compelling purpose and that the,law is narrowly tailored or the least,restrictive way to achieve that,compelling purpose to summarize the,rational basis intermediate scrutiny and,strict scrutiny tests are three tests,that courts commonly apply to determine,whether a law is constitutional or not,the rational basis test is the easiest,test for the government because the,party challenging the law must show that,there is no rational relationship,between the law and a legitimate,government purpose the strict scrutiny,test is the most challenging test for,the government because the government,must show that the law is the least,restrictive way to achieve a compelling,government purpose,you
Is this policy constitutional? Strict scrutiny, intermediate scrutiny & rational basis review
In this video, we’ll talk about three levels of scrutiny: rational basis, intermediate,scrutiny, and strict scrutiny. They are tests developed by the U.S. Supreme Court over time,to answer a question: Is a law, statue, or policy constitutional or not?,With each test, the court is basically asking two questions. Or we can say that the court,is applying two factors. One factor is the purpose of the law, and the other factor the,means used by the law to achieve that purpose. The first factor is: Why did the government,pass the law? What was the purpose of the law? Was the law for legitimate purpose, important,purpose, or compelling purpose? Its the easiest to show that the law was needed for legitimate,purpose. Its the most difficult for the government to show the law was needed for a compelling,purpose. With the rational basis test, the government,only needs to show that the law has a legitimate purpose.,With the intermediate scrutiny test, the government needs to show that the law has an important,purpose. With strict scrutiny, the government needs,to show that the law has a compelling purpose. The second factor the court applies is: what,are the methods that the law uses to achieve the government purpose?,Is there a rational relationship between the methods used by the law and the purpose the,law is intended to achieve? Is there a substantial relationship between,the methods used by the law and the purpose of the law?,The most challenging question is whether the law is narrowly tailored. Is it the least,restrictive way that the government can use to achieve its purpose?,After we put these factors together, we have three level of scrutiny. The rational basis,review is the easiest test for the government. The court asks two questions: (1) Does the,law have a legitimate purpose? (2) is there a rational relationship between the methods,used in the law and that legitimate purpose? The intermediate scrutiny is more challenging,for the government. Now the government must show: (1) the law has an important purpose,,and (2) the methods used in the law and the important purpose are substantially related,to achieve that important purpose. The strict scrutiny is the most challenging,test for the government. Here, the government has to prove: (1) the law was necessary to,achieve a compelling purpose, and (2) the methods used in the law are the least restrictive,way to achieve that compelling purpose. For a court to apply strict scrutiny, the,government must have passed a law or implemented a policy that infringes upon a fundamental,right. Fundamental rights are a group of rights that have been recognized by the Supreme,Court as requiring a high degree of protection from government encroachment. Those fundamental,rights are specifically identified in the Constitution (especially in the Bill of Rights),or under Due Process. Laws, statues, and policies encroaching on a fundamental right,generally must pass strict scrutiny to be upheld as constitutional. ,Another scenario for a court to apply strict scrutiny is that the government’s law, statue,,or policy involves a suspect classification. Suspect classifications include, but not limited to,,race, national origin, and religion. So, any policy that discriminates on the basis,of race will get strict scrutiny.,A policy that is facially neutral can also trigger strict scrutiny. I’ll provide an,example later in this video. Here is an example. A school district developed and implemented,a Student Safety Plan which included a policy that allowed transgender students to use school,bathroom and locker facilities that match their self-identified gender in the same manner,that cisgender students use those facilities. A group of parents brought this policy to,court, alleging that the policy violated the constitutional rights, including the right,to privacy, the parental right to direct the education and upbringing of one’s children,,and the right to freely exercise one’s religion. What test should the court use to decide whether,the policy was constitutional or not? Should the court use the rational basis test or strict,scrutiny test? To answer this question, the court asked two,questions. First, what is the purpose of the policy? Is it legitimate purpose, important,purpose, or compelling purpose? Second, what is the means used by the policy to achieve,that purpose?,Let’s first look at the purpose of this policy. It was argued that the policy had,a legitimate purpose, which was to protect student safety and well-being, and eliminate,discrimination on the basis of sex and transgender status.,Second, the means used in the policy was rationally related to a legitimate purpose., The parents argued that strict scrutiny should,be applied here. But the district court and the Ninth Circuit rejected this argument.,Instead, the court reviewed the policy by applying a rational basis review. The Ninth,Circuit held that because the policy qualified as neutral and generally applicable, the policy,was not subject to strict scrutiny.,The court held that “there is no Fourteenth Amendment right to privacy to avoid all risk,of intimate exposure to or by a transgender person who was assigned the opposite biological,sex at birth; a policy that treats all students equally does not discriminate based on sex,in violation of Title IX, and the normal use of privacy facilities does not constitute,actionable sexual harassment under Title IX just because a person is transgender; the,Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies,of the public schools to which parents may send their children, either independent of,the parental right to direct the upbringing and education of their children or encompassed,by it; and the school districts policy is rationally related to a legitimate state purpose,,and does not infringe students’ First Amendment free exercise rights because it does not target,religious conduct.” Here is an example of strict scrutiny. In Coalition for TJ v. Fairfax,County School Board (2022), a group of parents challenged Fairfax County school board’s,new admission policy of the Thomas Jefferson High School for Science and Technology, which,we call TJ here.,In 2020-2021, the racial makeup of TJs student body was 71.97% Asian American, 18.34% White,,3.05% Hispanic, and 1.77% Black. By contrast, the ,countywide racial makeup of the Fairfax County public schools was: 36.8% white, 27.1% Hispanic,,19.8% Asian American, and 10% Black. To diversify student enrollment, in December 2020, the,school board changed the TJ admission policy. Among many changes, one change was the removal,of three standardized tests. Another change was the added “Experience Factors” which,included an applicant’s attendance at a middle school deemed historically,underrepresented at TJ, eligibility for free and reduced price meals,,status as an English language learner, and status as a special education student.,A group of parents brought this new admission policy to court, claiming that the admission,changes at TJ would discriminate against Asian American students. To decide whether the new,admission policy was constitutional or not, what scrutiny tests should be applied? Is,it the rational basis test or the strict scrutiny test? A district judge applied strict scrutiny,to decide whether this policy was constitutional or not. The first factor is the purpose of,the new admission policy. ,The judge wrote, “[B]oard members and high-level FCPS (Fairfax County Public Schools) actors,did not disguise their desire for TJ to represent the racial demographics of Fairfax County,or Northern Virginia as a whole. Whether accomplished overtly or via proxies, racial balancing is,not a compelling interest.” … “The Supreme Court has recognized only,two interests as sufficiently compelling to justify race-based action remedying past intentional,discrimination and obtaining the benefits of diversity in higher education.” ,“The Boards main
The Levels of Scrutiny
in this video were going to talk about,the levels of scrutiny analysis used by,courts for judicial review and the,review is of government action or laws,passed by the government the question to,be answered it is whether the law or,action pass by the government is,constitutional or not its a complex,question and the United States Supreme,Court overtime has developed an analysis,thats loosely called the scrutiny,analysis but the levels of scrutiny are,applied to help courts evaluate whether,or answer that question of whether,the law or action is constitutional or,not by examining individual aspects of,the law or action itself the categories,are rational basis strict scrutiny so,rational basis scrutiny strict scrutiny,and intermediate scrutiny were going to,focus in this video on strict and,rational and and talk very little,about the intermediate level in the,middle so lawyers and judges alike will,argue about what level of scrutiny,applies and it is a dynamic question to,any applies to any law or government,action that is a point that will be,arguing theres a lot of case law,determining that as well for our,purposes were going to examine and,generally look at when the levels of,scrutiny apply more so so that we can,understand,generally speaking what the result of,the consequence of that application is,lets first look at an example to,illustrate the the analysis,lets say that the New York City Transit,Authority has a policy of not hiring any,employees or workers who use or have,used or are using at the time,methadone methadone is the synthetic,narcotic that blocks the effects of,heroin so its used widely by those who,are recovered,ring from a heroin addiction those who,are not current ad expect who are in a,process of recovery now in the united,states constitution there are several,fundamental rights that are set out you,have the right to vote for example you,have the right and the amendments the,Bill of Rights includes several of your,rights to name one you have the right to,free assembly in the right to free,speech thats too also in the 14th,amendment in the United States,Constitution is the equal protection,clause that Clause prohibits states from,treating citizens differently and what,weve what has evolved from that the,language of that clause is that what,states are prohibited from doing is,treating citizens differently based on,their membership in a protected class,now the Constitution does not mention,drug use or drug recovery in anyway its,not mentioned at all in the Constitution,we have no reason then to believe that,there is any organized bias against that,group of people now that may exist but,its not recognized within this analysis,structure at law,what that means is that drug addicts or,drug recovery addicts in recovery either,of those categories they do not qualify,as a suspect class a suspect class is,defined or what qualifies as a suspect,class is race religion and national,origin so if the different treatment is,based on race religion or national,origin then that is that triggers a,strict scrutiny because a suspect class,is involved here in our first example,there is no strict scrutiny were left,with rational basis scrutiny because,there is no suspect class at issue now,what that means when rational basis,scrutiny applies and thats a question,honestly that will usually be answered,by lawyers the lawyers will argue about,what level of scrutiny again our purpose,today is to get to this column,what is the consequence of that,designation,when rational basis applies the,government knew only show a legitimate,interest,jiten correctly legitimate here means,nothing more than on fake its a very,low bar for the government to overcome,the government is always in the position,of defending its law or action in this,analysis,lets change up that New York City,Transit Authority example to illustrate,strict scrutiny,lets say instead that they have a,policy and the policy says that they,dont hire anyone whos of the,seventh-day adventist faith or the,Jewish faith because those religious,groups practice and meet on Saturdays,and the New York City Transit Authority,wants all of their employees to be,equally available on saturdays thats,different from our first example just,taking methadone religion and religious,groups that is mentioned in the,Constitution its fits squarely within a,suspect class and so strict scrutiny,would apply here again not a designation,that you would have to be able to make,for purposes of our class but it it,helps I think to understand the,background of why the designation is,what it is when strict scrutiny applies,the government has to show a lot more,than legitimate reason they have to show,a compelling reason to support their law,or action and here the New York City,Transit Authority would have to have a,really really good reason for their,policy treating members of one religion,different from members of the of another,religion,for the intermediate level the,government interest is simply important,which is just in between the two and,again we wont spend time talking about,that now we finally get to our question,is it constitutional or not when,rational basis is the level of scrutiny,that applies again the government reason,for the law or action the only be a,legitimate one which is not fake a very,low bar,thus the answer to the question is it,constitutional when rational basis,supplies is going to be probably is,going to be yes now in contrast when,strict scrutiny applies and the,governments burden is much higher and,they have to show a compelling interest,to support different treatment of in our,example member of one religion treated,differently than a member of another,religion the government has to have a,really really really good reason to,support that law or action so the answer,to our question is that likely going to,be constitutional is usually no hope you,hope you learned something
The Rational Basis and Strict Scrutiny Tests