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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. Where middle-level scrutiny is used, there’s roughly a 50-50 chance that the governmental action will 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 standard: 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” standard is the main test used 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, too: the state’s interest in enforcing its regulation must also outweigh any burden imposed on interstate commerce, and any discrimination against interstate commerce.)

b. Substantive due process:  Next comes substantive due process. So long as no “fundamental right” is affected, the test for determining whether a governmental act violates substantive due process is, again, “mere rationality.” In other words, if the state is pursuing a legitimate objective, and using means that are rationally related to that objective, the state will not be found to have violated the substantive Due Process Clause. So the vast bulk of economic regulations (since these don’t affect fundamental rights) will be tested by the mere-rationality standard and almost certainly upheld.

c. Equal protection:  Then, we move on to the equal protection area. Here, “mere-rationality” review is used so long as: (1) no suspect or quasi-suspect classification is being used; and (2) no fundamental right is being impaired. This still leaves us with a large number of classifications which will be judged based on the mere-rationality standard, including: (1) almost all economic regulations; (2) some classifications based on alienage; and (3) rights that are not “fundamental” even though they are very important, such as food, housing, and free public education. In all of these areas, the classification will be reviewed under the “mere-rationality” standard, and will therefore almost certainly be upheld.

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