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There are three "levels of scrutiny" used to determine if a law is valid. The lowest level, the level which every law must meet is rational basis. Government ma

by dpatru 16y ago

There are three "levels of scrutiny" used to determine if a law is valid. The lowest level, the level which every law must meet is rational basis. Government may not enforce a law which makes absolutely no sense. See http://en.wikipedia.org/wiki/Rational_basis_review http://en.wikipedia.org/wiki/Rational_basis_review.

carbocation 16y ago
>There are three "levels of scrutiny" used to determine if a law is valid. The lowest level, the level which every law must meet is rational basis. Government may not enforce a law which makes absolutely no sense. The article that you linked to indicates that "rational basis review" applies to laws which may be related to the 5th or 14th Amendments, which is substantially narrower than what you've appeared to say. I'm not a lawyer, so can you clarify?
- RickHull 16y ago
  Well, it's a pretty low bar to have a rational basis. Such ought to be apparent. When it is not apparent -- and called into question -- it must be defended, for to acknowledge no rational basis is policy suicide. The problem is not that this law has no rational basis, it's that it is tenuous. I can imagine a few: we don't want terrorists to be able to smuggle (dangerous) materiel past our borders when detecting such is relatively trivial (i.e. airport checks are easy). Or we want to condition the general public to accepting invasive behavioral controls. Clearly some rational bases cannot be acknowledged. And so that is the test. The proponent of the law must acknowledge a rational basis for its existence. Should he fail, it would be devastatingly easy to lobby for its removal. So the real problem is: let's identify precisely the rational basis here. What is the motivation?
- dpatru 16y ago
  Both the fifth amendment and the fourteenth mention "due process" as in: no person may be deprived of life, liberty, or property without due process of law. The fifth fifth applies to the federal government, and the fourteenth to the state governments. When the government passes a law that infringes on a person's right, one way a person can challenge it is to claim that the law violates (substantive) due process. The idea is that government has to have a reason for depriving a person of his right. How important the government's reason has to be depends on the importance of the right being infringed. If the right is "fundamental" (1st amendment, voting, interstate travel, or privacy,) then the government must have a very good reason for infringing the right and it must not infringe more than necessary. This is "strict scrutiny". If the right involved is not very important, the government need only show that it had some acceptable reason (the law must be rationally related to a legitimate government purpose.) This is rational basis. Every law that fails rational basis must also fail strict scrutiny. But not every law that fails strict scrutiny must also fail rational basis. The vast majority of the laws pass rational basis. It's true that the law being challenged has to relate to the fifth or fourteenth amendments, but that's not a very hard test to meet. Almost anytime a person would legitimately want to challenge a law, it would be because the law is depriving him of some right. And in every such case, the law must at least have a rational basis. This is case here. The traveler has a right to travel, the government was going to deprive the traveler of this right. The government must have a rational basis at least.

by dpatru 16y ago

carbocation 16y ago

>There are three "levels of scrutiny" used to determine if a law is valid. The lowest level, the level which every law must meet is rational basis. Government may not enforce a law which makes absolutely no sense. The article that you linked to indicates that "rational basis review" applies to laws which may be related to the 5th or 14th Amendments, which is substantially narrower than what you've appeared to say. I'm not a lawyer, so can you clarify?

RickHull 16y ago
Well, it's a pretty low bar to have a rational basis. Such ought to be apparent. When it is not apparent -- and called into question -- it must be defended, for to acknowledge no rational basis is policy suicide. The problem is not that this law has no rational basis, it's that it is tenuous. I can imagine a few: we don't want terrorists to be able to smuggle (dangerous) materiel past our borders when detecting such is relatively trivial (i.e. airport checks are easy). Or we want to condition the general public to accepting invasive behavioral controls. Clearly some rational bases cannot be acknowledged. And so that is the test. The proponent of the law must acknowledge a rational basis for its existence. Should he fail, it would be devastatingly easy to lobby for its removal. So the real problem is: let's identify precisely the rational basis here. What is the motivation?
dpatru 16y ago
Both the fifth amendment and the fourteenth mention "due process" as in: no person may be deprived of life, liberty, or property without due process of law. The fifth fifth applies to the federal government, and the fourteenth to the state governments. When the government passes a law that infringes on a person's right, one way a person can challenge it is to claim that the law violates (substantive) due process. The idea is that government has to have a reason for depriving a person of his right. How important the government's reason has to be depends on the importance of the right being infringed. If the right is "fundamental" (1st amendment, voting, interstate travel, or privacy,) then the government must have a very good reason for infringing the right and it must not infringe more than necessary. This is "strict scrutiny". If the right involved is not very important, the government need only show that it had some acceptable reason (the law must be rationally related to a legitimate government purpose.) This is rational basis. Every law that fails rational basis must also fail strict scrutiny. But not every law that fails strict scrutiny must also fail rational basis. The vast majority of the laws pass rational basis. It's true that the law being challenged has to relate to the fifth or fourteenth amendments, but that's not a very hard test to meet. Almost anytime a person would legitimately want to challenge a law, it would be because the law is depriving him of some right. And in every such case, the law must at least have a rational basis. This is case here. The traveler has a right to travel, the government was going to deprive the traveler of this right. The government must have a rational basis at least.