Equal Protection & the Levels of Scrutiny
Every EP question is really one question: which test applies? Pick the right tier and the answer usually writes itself.
The three tiers
| Tier | Triggered by | The test | Burden on |
|---|---|---|---|
| Strict scrutiny | Race, national origin, state alienage; burdens on fundamental rights | Necessary to a compelling interest—narrowly tailored, least restrictive means | Government (usually loses) |
| Intermediate | Sex, legitimacy (nonmarital children) | Substantially related to an important interest—for sex, an “exceedingly persuasive justification” | Government |
| Rational basis | Everything else—age, wealth, disability, federal alienage, economic lines | Rationally related to a legitimate interest—any conceivable one | Challenger (usually loses) |
Picking the tier
The law treats two groups differently
Classify the classification.
Does it sort by race, national origin, or (state law) alienage?
Strict scrutiny. Compelling interest + narrow tailoring.
Does it burden a fundamental right—voting, travel, court access?
Strict scrutiny—even with no suspect class in sight.
Does it sort by sex or legitimacy?
Intermediate scrutiny. Important interest, substantially related, no stereotypes.
Rational basis
The law survives unless it's irrational—challenger loses absent pure animus.
You need discriminatory intent
A facially neutral law gets heightened scrutiny only with discriminatory purpose—disparate impact alone isn't enough. Intent can show through the face of the law, its application (Yick Wo), or its history and impact together.
The city's grooming code disqualifies 90% of applicants from Lana's neighborhood—impact alone gets rational basis. Show the drafters adopted it because of that effect, and strict scrutiny switches on.
Alienage: the two-track trap
- Barring lawful residents from private-sector work, benefits, or ordinary public jobs → strict scrutiny
- Political-function exception: voting, jury service, police, probation officers, public-school teachers → rational basis
- Congress has plenary power over immigration—federal alienage lines get rational basis
- Same rule, different sovereign, opposite outcome: know who wrote the law
State A bars Rosa, a lawful permanent resident, from a notary license—strict scrutiny (she wins). Congress limits a federal benefits program to citizens—rational basis (it survives). Same Rosa, different lawmaker.
Fundamental rights under EP
Classifications that burden voting (poll taxes, ballot-access fees), interstate travel/migration (durational residency requirements for benefits), or access to the courts (fees that block indigent appeals in fundamental matters) get strict scrutiny regardless of who is burdened.
Not fundamental for EP purposes: education (Rodriguez), housing, welfare. Wealth is not a suspect class. A sympathetic plaintiff plus a non-fundamental interest still equals rational basis.
A $500 filing fee keeps broke Liv off the ballot—strict scrutiny. Unequal school funding across districts hurts Liv's neighborhood—rational basis (Rodriguez). The examiners love putting these side by side.
Essay recipe: name the classification → state the tier and its exact test → identify who bears the burden → apply in two sentences → flag the trap (impact vs. intent, federal vs. state, political function). The tier sentence is where the points live.
Where the points are
The traps examiners actually set.
- Most tested
- Choosing the tier; disparate impact without intent (rational basis); state vs. federal alienage; fundamental-rights strict scrutiny for voting and travel.
- Classic traps
- Education or wealth as suspect/fundamental (neither is); the political-function exception; “substantially related” answers on race questions (wrong tier); forgetting rational basis almost always upholds—and strict scrutiny almost always kills.
Keep going: Levels of Scrutiny flowchart Con Law Attack Sequences Equal Protection MEE guide