Block on Trump's Asylum Ban Upheld by Supreme Court
When the constitutionality of a law is challenged, both state and federal courts will commonly apply one of three levels of judicial scrutiny from the spectrum of scrutiny:
The level of scrutiny that's applied determines how a court will go about analyzing a law and its effects. It also determines which party -- the challenger or the government -- has the burden of proof. Although these tests aren't exactly set in stone, there is a basic framework for the most common levels of scrutiny applied to challenged laws.
This is the highest level of scrutiny applied by courts to government actions or laws. The U.S. Supreme Court has determined that legislation or government actions that discriminate on the basis of race, national origin, religion, and alienage must pass this level of scrutiny to survive a challenge that the policy violates constitutional equal protection. This high level of scrutiny is also applied whenever a "fundamental right" is being threatened by a law, like the right to marriage.
Strict scrutiny requires the government to prove that:
The next level of judicial focus on challenged laws is less demanding than strict scrutiny. In order for a law to pass intermediate scrutiny, it must:
This test was first accepted by the U.S. Supreme Court in 1976 to be used whenever a law discriminates based on gender or sex. Some federal appellate courts and state supreme courts have also applied this level of scrutiny to cases involving sexual orientation. As with strict scrutiny, intermediate scrutiny also places the burden of proof on the government.
This is the lowest level of scrutiny applied to challenged laws, and it has historically required very little for a law to pass as constitutional. Under the rational basis test, the person challenging the law (not the government) must prove either:
Courts using this test are highly deferential to the government and will often deem a law to have a rational basis as long as that law had any conceivable, rational basis -- even if the government never provided one. This test typically applies to all laws or regulations which are challenged as irrational or arbitrary as well as discrimination based on age, disability, wealth, or felony status.
There are many levels of scrutiny, called the spectrum, but the main three levels have been outlined here. The spectrum of scrutiny ranges from Rational Basis Review being the most relaxed on one side and Strict Scrutiny being very intense on the other end. These levels of scrutiny can and will continue to change as courts apply them in the future.
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.