Government's exclusive prerogative to articulate its "interests"?

[Steve Sanders]

But David, hasn't the Court moved past the almost absurd deference of Lee
Optical, at least in cases involving personal (rather than economic)
discrimination or liberty?  If Cleburne/Romer/Lawrence style rational basis
is appropriate to a case, doesn't the state need to be the party that must
persuade a court that a law was not motivated by an improper purpose (such
as a state desire to enshrine morality -- alone and for its own sake) in its
law?

Steve  

> -----Original Message-----
> From: Orentlicher, David [mailto:dorentli at iupui.edu] 
> Sent: Tuesday, October 12, 2010 2:10 PM
> To: Bernard Bell; conlawprof at lists.ucla.edu; Steve Sanders
> Subject: RE: Government's exclusive prerogative to articulate 
> its "interests"?
> 
> I agree with Bernie that the Supreme Court will look at 
> actual reasons for the statute under strict scrutiny.  
> However, under rational basis review, it will consider 
> interests that the legislature might have relied upon, 
> whether or not they were actual reasons.  I think Williamson 
> Optical is an example of such a case.
> 
> * * * * * * * * * * * * * * * * *
> David Orentlicher
> Visiting Professor of Law, University of Iowa College of Law
> 
> Samuel R. Rosen Professor of Law
> Indiana University School of Law-Indianapolis
> 
> ________________________________________
> From: conlawprof-bounces at lists.ucla.edu 
> [conlawprof-bounces at lists.ucla.edu] on behalf of Bernard Bell 
> [bbell at kinoy.rutgers.edu]
> Sent: Tuesday, October 12, 2010 4:48 PM
> To: conlawprof at lists.ucla.edu; Steve Sanders
> Subject: Re: Government's exclusive prerogative to articulate 
> its "interests"?
> 
> Interesting idea.  No precedent or scholarly work immediately comes to
> mind on the question.
> 
> My concern with such an argument, at least in the context of
> "rational basis" or "intermediate" scrutin,y is that the
> position of a government may change due to a partisan political change
> in the identity of the chief executive, the composition of the
> legislature, or both.  Thus, even though statutes enacted by former
> majorities continue to serve the legitimate interests those former
> majorities intended them to serve, government officials assuming power
> under an ideologically different administration may choose not to cite
> those justifications.  In such a situation, an intervenor 
> attuned to the
> ideology of the former majorities that enacted the 
> legislation may more
> faithfully argue the statutory rationale than those currently 
> in power.
> A current administration should not be able to overturn 
> statutes enacted
> by prior legislative majorities by merely refusing to assert as
> government interests the rationales that motivated past 
> majorities; the
> administration should be required to secure legislation 
> overturning the
> statute.  In short, the current administration should not always be
> viewed as providing the authoritative defense of the statute 
> because of
> the possibility that the current administration may not share 
> the public
> policy views of prior majorities (public policy views which 
> are entitled
> to continued recognition unless altered by revising a statute 
> by way of
> bi-cameralism and presentment).
> 
> I'm a little more comfortable with your argument when the court
> engaged in strict scrutiny.  It's much more difficult to conclude that
> the need for a statutory provision is compelling, when the current
> administration doesn't even believe the justification to be legitimate
> or significant. Ordinarily, the reason given to support a 
> statute being
> attacked on the basis of strict scrutiny has to be the government's
> actual reason for enacting the statute.  Of course, perhaps the
> rationale for enacting the statute is not the views of the
> administration at the time the statute is challenged (which might be
> viewed as a post hoc rationalization of the statute) but the rationale
> and the justification for why it is compelling offered by those that
> enacted the legislation.
> 
> Bernie Bell
> 
> 
> 
> 
> Bernard W. Bell
> Professor & Herbert Hannoch Scholar
> Rutgers Law School-Newark
> 123 Washington Street
> Newark, NJ 07102
> (973) 353-5464 (voice)
> (973) 353-1445 (fax)
> bbell at kinoy.rutgers.edu
> >>> "Steve Sanders" <stevesan at umich.edu> 10/12/2010 7:16 PM >>>
> 
> Under heightened scrutiny, a government defendant in a constitutional
> lawsuit must show significant or compelling interests; under rational
> basis,
> it must at least explain "the relation between the classification and
> the
> object to be attained." (Romer)  Is there any  support (case? eminent
> commentator?) for the proposition that the duty to identify and
> articulate
> "government interests" belongs uniquely and exclusively to the
> government?
> In other words, if a statute is challenged facially, a court might
> entertain
> suggestions from intervenors, amici, etc., about why it survives
> scrutiny,
> but it should not rely on them if the government does not adopt the
> same
> arguments.  We expect the  sovereign, not someone else, to define and
> articulate the legitimate/significant/compelling interests that are
> served
> by the sovereign's laws.  Am I off track here?
> 
> Many thanks,
> Steve
> 
> _________________________________
> 
> Steve Sanders
> E-mail:  stevesan at umich.edu
> Web: http://www.stevesanders.net
> 
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