![]() The Court starts with a heavy presumption against a state law that infringes the constitutional or statutory right in question. The compelling interest standard of RLUIPA-like the compelling interest standard that the Court employs when applying strict scrutiny to examine state limitations on certain constitutional rights-necessarily operates as a balancing test. This case illustrates both the difficulty of those inquiries and the important role that history and state practice often play in the analysis. He Court's holding implicates significant issues about how the Court decides whether a State's asserted interest is sufficiently "compelling" and how the Court assesses whether less restrictive means could satisfy that compelling interest. I've long been interested in the subject (see, e.g., my criticisms of strict scrutiny in my 1996 Freedom of Speech, Permissible Tailoring, and Transcending Strict Scrutiny and in Part II of my A Common-Law Model for Religious Exemptions), and I was therefore especially interested in seeing Justice Kavanaugh's concurrence discussing the matter in today's Ramirez v. The details of how strict scrutiny plays out end up being quite important, but while the Court has a lot of precedents applying strict scrutiny, many of the key questions (such as how one can tell whether an interest is "compelling") remain unresolved. ![]() At the same time, a lot of others should fail. But in other areas, such as religious exemptions governed by RFRAs or RLUIPA (statutes that borrow the strict scrutiny test from constitutional law), a lot of restrictions must pass-no Justice thinks, for instance, that people should get religious exemptions from laws banning homicide or theft or vandalism or trespass, or for that matter from most tax laws and other important regulatory regimes. In some fields, such as free speech or race classifications, the inquiry is "strict in theory but fatal in fact": Very few restrictions pass the test. (to oversimplify slightly), when the government can show that restricting the right is the "least restrictive means" of serving a "compelling government interest." The proposed doctrinal reformulation would also introduce clarity into a currently opaque, yet abidingly important, domain of public law.In many areas of constitutional law, the Court allows a constitutional right to be overcome when a restriction passes "strict scrutiny"- i.e. 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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