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3. Middle-level review:  In between these two review standards is so-called “middle-level” review.

a. “Important” objective:  Here, the governmental objective has to be “important” (half way between “legitimate” and “compelling”).

b. “Substantially related” means:  And, the means chosen by the government must be “substantially related” to the important government objective. (This “substantially related” standard is half way between “rationally related” and “necessary.”)

B. Consequences of choice:  The court’s choice of one of these standards of review has two important consequences:

  1. Burden of persuasion:  First, the choice will make a big difference as to who has the burden of persuasion.

a. Mere rationality:  Where the governmental action is subject to the “mere-rationality” standard, the individual who is attacking the government action will generally bear the burden of persuading the court that the action is unconstitutional.

b. Strict scrutiny:  By contrast, if the court applies “strict scrutiny,” then the governmental body whose act is being attacked has the burden of persuading the court that its action is constitutional.

c. Middle-level review:  Where “middle level” scrutiny is used, it’s not certain how the court will assign the burden of persuasion, but the burden will usually be placed on the government.

2. Effect on outcome:  Second, the choice of review standard has a very powerful effect on the actual outcome. Where the “mere-rationality” standard is applied, the governmental action will almost always be upheld. Where “strict scrutiny” is used, the governmental action will almost always be struck down. (For instance, the Supreme Court applies strict scrutiny to any classification based on race, and has upheld only one such strictly scrutinized racial classification in the last 50 years.) Where middle-level scrutiny is used, there’s roughly a 50-50 chance that the governmental action will be struck down.

a. Exam Tip:  So when you’re writing an exam answer, you’ve got to concentrate exceptionally hard on choosing the correct standard of review. Once you’ve determined that a particular standard would be applied, then you might as well go further and make a prediction about the outcome: if you’ve decided that “mere rationality” applies, you might write something like, “Therefore, the court will almost certainly uphold the governmental action.” If you’ve chosen strict scrutiny, you should write something like, “Therefore, the governmental action is very likely to be struck down.”

C. When used:  Here is a quick overview of the entire body of Constitutional Law, to see where each of these review standards gets used:

1. Mere rationality:  Here are the main places where the “mere-rationality” standard gets applied (and therefore, the places where it’s very hard for the person attacking the governmental action to get it struck down on constitutional grounds):

a. Dormant Commerce Clause:  First, the “mere-rationality” test is the main test to determine whether a state regulation that affects interstate commerce violates the “dormant Commerce Clause.” The state regulation has to pursue a legitimate state end, and be rationally related to that end. (But there’s a second test which we’ll review in greater detail later: the state’s interest in enforcing its regulation must also outweigh any burden imposed on interstate commerce, and any discrimination against interstate commerce.)

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