Reply To: Passport requirement casts wide net, imposes badge of shame


Kurt Martin

The NARSOL article says that the passport-stamp law was upheld on “rational basis” scrutiny.

Folks, that’s NO scrutiny at all, and I can’t think of ANY criminal law that tells citizens what they can and cannot do, with the threat of arrest and prison for violations, that should EVER be subject to rational basis scrutiny.
Intermediate scrutiny for most, and strict scrutiny for many. That’s how criminal laws and quasi-criminal laws regarding probation, parole, and sex offender registrations should work.

The only kind of law that should be given “rational basis” deference are the unimportant minutia of regulatory and administrative law– how certain businesses must operate, or how the government itself operates internally and administratively. If the government passes a law that says if you don’t wear a helmet while riding a motorcycle you can get arrested, make that a high-scrutiny evaluation of the law itself. But once such a law is passed, if a follow-up law adopts national highway safety standards for the crash-protection rating on helmets, and tells dealers in helmets that they must sell them with all their factory packaging materials and labels and instruction manuals, fine. Make THAT law only pass “rational basis” to remain enforceable.