When Constitutional Tailoring Demands the Impossible: Unrealistic Scrutiny of Agencies?

22 Pages Posted: 3 Aug 2017

See all articles by Lars Noah

Lars Noah

University of Florida Levin College of Law

Date Written: August 1, 2017

Abstract

Scholars have raised various objections to the last and often decisive (narrow tailoring) prong of the different forms of heightened scrutiny, and these problems may become acute when courts consider constitutional challenges brought against government entities that enjoy far more truncated powers than do legislative bodies. This Essay argues, however, that agencies should enjoy no special dispensation for failing to consider less restrictive means simply because the legislature has failed to empower them to adopt such alternative courses of action.

Suggested Citation

Noah, Lars, When Constitutional Tailoring Demands the Impossible: Unrealistic Scrutiny of Agencies? (August 1, 2017). George Washington Law Review, Vol. 85, No. 5, 2017, Available at SSRN: https://ssrn.com/abstract=3011925

Lars Noah (Contact Author)

University of Florida Levin College of Law ( email )

P.O. Box 117625
Gainesville, FL 32611-7625
United States
352-273-0923 (Phone)
352-392-3005 (Fax)

HOME PAGE: http://www.law.ufl.edu/faculty/lars-noah

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