Prof DUBIN, SPRING 2011
POVERTY OUTLINE
CONSTITUTIONAL ISSUES
Equal Protection Analysis
1) Minimum Rationality-RBT
a. Legitimate state interest
b. Means rationally related to goal
2) Intermediate scrutiny
a. Important gov’t interest/objective
b. Substantially related
3) Strict Scrutiny
a. Compelling gov’t interest
b. Narrowly tailored means
i. When does it apply?
1. Fundamental Right
a. Voting, travel
2. Suspect class
a. Race, National Origin
Determining the Level of Scrutiny (court unwilling to add other groups to heightened scrutiny but these are considerations it makes during that inquiry):
(1) Immutable characteristic-like gender, race, national origin-person can’t do anything about them
(2) Ability of the group to protect itself through political process; W historically underrepresented in political officers and aliens can’t vote so can’t trust political process to protect them
(3) History of discrimination against the group
a. Court considers the likelihood that the classification reflects prejudice as opposed to a legitimate gov’t purpose (rare that race based classification ever has any justification)
Evaluating whether gov’t action meets scrutiny level (relationship of means to ends):
(1) Overinclusive-law applies to those who do not need to be included in order for the gov’t to achieve its purpose
a. Japanese internment case-overinclusive b/c applied to all Japs but only some suspected of espionage (goal to prevent espionage)
(2) Underinclusive-law does not apply to all individuals that are the similar in this regard, only applies to some
(3) Over/Underinclusiveness decided when assessing means to achieve purported end.
• EPC also applies when gov’t discriminates based on persons’ exercise of a fundamental right.
• Court now uses substantive due process clause to protect fundamental rights.
Equal Protection Analysis: Is the gov’t classification justified by a sufficient purpose?
(1) Is there government action?
(2) Is there a classification/disparate treatment?
(3) If yes, does the gov’t have a sufficient justification for the action KEY
a. What is the level of scrutiny to be applied?
b. Does the government satisfied this?
Standards of Review/Levels of Scrutiny
(1) Rational Basis Test (minimum rationality-everything else)
a. TEST: Law will be upheld if it is rationally related to a legitimate gov’t purpose
i. End-any conceivable purpose, not actual is fine
ii. Means-have to be a reasonable, rational way to achieve goal
iii. Challenger has burden of proof
iv. VERY DEFERENTIAL
(2) Intermediate Scrutiny (gender, illegitimacy; quasi suspect class)
a. TEST: Law will be upheld if substantially related to an important gov’t purpose
i. End-goal has to be important; only actual goal is considered
ii. Means-must be substantially related; very good way to obtain goal, not best or least restrictive
iii. Government has burden of proof (to show meets test)
(3) Strict Scrutiny (suspect class-race, national origin, alien status, exercise of fundamental right)
a. TEST: Law will be upheld if it is necessary to achieve a compelling gov’t purpose
i. End-goal has to be compelling, crucial; only actual goal is considered
ii. Means-must be necessary to attain the goal; must be narrowly tailored and the best way, the least restrict way to achieve goal
1. Least restrictive-discrimination is only way to achieve this goal
iii. Gov’t has burden; gov’t usually loses here
Evaluating whether gov’t action meets scrutiny level (relationship of means to ends):
(1) Overinclusive-law applies to those who do not need to be included in order for the gov’t to achieve its purpose
a. Japanese internment case-overinclusive b/c applied to all Japs but only some suspected of espionage (goal to prevent espionage)
(2) Underinclusive-law does not apply to all individuals that are the similar in this regard, only applies to some
(3) Over/Underinclusiveness decided when assessing means to achieve purported end.
Negative Right-right to be free to engaged in an activity w/o government interference
Positive Right-right to engage in the activity even if it requires affirmative gov’t assistance
INTRODUCTION: What is Poverty?
Who’s role is it to provide for poor?=Court vs Congress (legislature)
Safety nets for the poor?
-Distinguish b/w deserving and undeserving poor
How is Poverty Measured?
– Poverty line- based on the minimal amount of money required for a subsistence level of life; absolute measures
– Determination of Poverty line:
o Compute the costs of a basic nutritionally adequate diet multiplied by 3 (based on notion from 1955 that people spent 1/3 of income on food)
o 2003-almost 36 million poor)
§ 2009-44 million poor (14.5% poor)
– This
iased and that is how ability is measured.
d. Solutions?
i. Job training, guaranteed health insur, subsidies, child care
CAUSES-Structuralist point of view
1) lack of resources
2) structural arrangements that maintain inequality
a. fix by enforcing laws about equal opp’y employment
b. resridirubtion of power
Eitzen
– Most poor are impoverished for structural reasons, not personal ones (due to inequality in money and opp’y)
– US can deal with poverty if it gave the problem high priority
Effects of Being Poor
– higher infant mortality rate
– higher rates of violent crime
o affect by gap b/w rich and poor and proportion of pop’n living in poverty
– less preparedness for natural disasters
– exposed to more toxic substances in housing
– pay over 50% for inadequate housing?????? REVIEW THIS
CHARLES MURRAY ( 39-51); individualist
– people get what they deserve (some poor are deserving)
– drones-undeserving poor; refuse to work
– transfers are like robbery; should be avoided
– looks at effects of transfers
o did it reach intended recipient?
o Did the transfer have effect on behavior/condition of recipient?
– suggests getting rid of ALL programs (safety net) with exception of unemployment insurance program b/c do more net harm than good
LAWRENCE MEAD; individualist (current pov’y law view)
– People can only address employment issues if they work (need leg to stand on)
o These are people who got New Deal reforms
o Claims based on dessert outweigh those based on need
– Cause of poor is people NOT working
WILLIAM JULIOUS; Structural
– Advocates on-the- job training, child care assistance (tax credit, pre school, subsidies for care)
– universal programs
– rejects race based approaches (wont get approval and doesn’t solve problem)
– says Mead is not realistic; attitudes of poor alone don’t cause joblessness
