What does narrowly tailored mean

Courts often defer to legislatures in cases of scientific uncertainty. I emphasize, however, that while it offers us an opportunity to think about how to incorporate offset analysis into constitutional scrutiny, my claim here is not that offset legislation would necessarily insulate stay-at-home orders from constitutional challenge.

Housing protections have been uncertain and unclear. More importantly, the Acts were not passed in order to minimize burdens on fundamental rights: they minimize the burdens of economic harms, which may or may not align with a fundamental rights analysis. It is, after all, unclear that the right to come together to engage in economic production and earn a livelihood is fundamental.

Thus, all individuals do not obtain benefits from the Act to the same degree. Those who remain employed and enjoy a high income, for example, may obtain no aid. If those individuals challenge state actions, the government can show no offset. How exactly do we assess whether a burden and offsetting benefits are sufficiently related such that they should be assessed together? In other words, imagine an individual who owns a renewable energy business challenges the stay-at-home regulation, which costs her significant revenue.

It would seem strange for a court to conclude that it should take the unrelated subsidy legislation into account when assessing the burden of the public health order. In other words, there should be some relationship between the government legislation that burdens and the legislation that offsets the burden.

We might look to other areas of the law that similarly demand a nexus between pieces of legislation. The test I propose is a causal nexus between the offsets and the burdens that are imposed. That is, the offsets would not have been provided but for the regulatory burdens. It would not matter whether the legislation is in the same or different bill: sometimes provisions in omnibus bills are completely unrelated.

Indeed, offsets may be adopted not just at different times but by different authorities. The shelter-in-place orders are the product of municipal and state regulation. While the federal offsets sometimes give discretion to local entities to determine whether or not to mitigate, many of the key steps are federally driven.

However, it would be wrong to conclude that since the states did not engage in mitigation, their public health measures are therefore not narrowly tailored. Indeed, as scholars of federalism emphasize, states and the federal government often act as partners, including by co-administering programs such as the health insurance exchanges in the Affordable Care Act some run by state governments and some by federal entities , [96] co-enforcing federal health privacy laws, [97] and coordinating on law enforcement.

States are similarly enmeshed within Centers for Disease Control programs: the CDC has established state networks for key initiatives such as injury prevention, on which states take the lead.

Similarly, states often play a role in shaping federal legislation; indeed, on certain understandings of federalism, states are represented through their congressional delegation, especially by their Senators, in shaping legislation.

Thus, the federal legislation should be seen as a response to the state legislation, that is, as an effort to mitigate the measures states adopted in consultation with the CDC. Narrow tailoring analysis should proceed with an eye to these efforts to mitigate. The approach I have offered gives governments flexibility should their public health orders be found constitutionally wanting. Additional offsets are already on the table: politicians at both the state and federal level are calling for further remedial measures.

See infra notes Times Mar. See e. Binford v. See infra Part III. Anthony S. Fauci et al. Med Post Mar. Wendy E. Executive Order N Mar. GOV Mar. Jordyn Holman et al, 47, U. COM Mar.

City of Cleburne v. Cleburne Living Ctr. Litman, supra note 3. Wiley, supra note 3. Parmet, surpa note Lindsay F. See also Binford v. Ayres writes specifically in the context of affirmative action that seeks to remedy invidious discrimination. His account is not meant to be exhaustive, but it offers a framework through which to understand the concept.

On yet a third account, which would apply in an equal protection context, narrow tailoring is designed to limit divisiveness between beneficiary and non-beneficiary groups. Situations where the government has to distinguish between beneficiaries and non-beneficiaries, especially in highly visible ways such as by mandating racial quotas , can increase divisiveness.

Robert P. The other two standards are intermediate scrutiny and rational basis review. Strict scrutiny will often be invoked in an equal protection claim. For a court to apply strict scrutiny, the legislature must either have passed a law that infringes upon a fundamental right or involves a suspect classification. Suspect classifications include race, national origin , religion, and alienage. The application of strict scrutiny, however, extends beyond issues of equal protection.

To avoid overbreadth, governments must tailor laws narrowly so they are using the least restrictive means to achieve their purposes. For example, Frisby v. Schultz centered on a city ordinance that regulated picketing in residential areas.

Although the ordinance was upheld as constitutional, some Supreme Court justices dissented, saying the ordinance was too broad and potentially restricted all picketing in residential streets. The majority opinion in Frisby interpreted the ordinance as applying only to picketing single residences and saw no need to strike down the ordinance or to force the city to come up with a less restrictive means of regulating residential picketing.

To ensure narrow tailoring, the Court developed the standard of strict scrutiny when reviewing free speech cases. To satisfy strict scrutiny, the government must show that the law meets a compelling government interest and that the regulation is being implemented using the least restrictive means.

Paul , the Supreme Court struck down an ordinance that banned all cross burnings. The Court held that this ordinance was not tailored narrowly and could suppress speech that the state did not have a substantial interest in suppressing. In Gooding v. Therefore, the government cannot place restrictions on more speech than is necessary to advance its compelling interest. Narrow tailoring is not confined to strict scrutiny cases.

More recently, the U.