Tanning vs. Illegal Immigration and the Compelling Government Interest

I made a big, big mistake the other day. Some might say that headlining a recent piece “Why Snooki Matters” was a mistake in and of itself, but I stand by my logic on that assertion.  Instead, my mistake was not-so-artfully concealed within one of the paragraphs in that piece, and a detail-oriented reader rightfully pointed it out.

The commentary in question was written to demonstrate that the eternally orange-skinned Nicole “Snooki” Polizzi of MTV’s Jersey Shore was of surprising political consequence, as she represented a great number of Americans whose political involvement hinges upon the right buttons being pressed.  Snooki was concerned about the ten percent tax on tanning services instituted by the Obama administration, and while writing about why her newfound involvement mattered, I mistakenly wrote this (emphasis added):

A week ago, during the premiere of the new season of Jersey Shore, the perpetually orange, oompa-loompa-like girl from Marlboro, New York was shown applying a liberal amount of bronzer to her face and commenting that she no longer frequents tanning salons “because Obama put a ten percent tax on tanning.” (Try to ignore, if you will, her arrest the next day for drunk and disorderly conduct exhibited on the Seaside Heights, NJ boardwalk, though to stand head and shoulders above the rest of the drunk and disorderly crowd on the Seaside Heights boardwalk enough to get arrested is no small feat.)

Now, while Snooki did not bother to mention that the administration’s institution of the tax on tanning services is an overt breach of the president’s campaign promise to ensure that no one making less than $250,000 per year will see a tax increase, nor did she mention that the tariff likely violates the Equal Protection Clause of the Fourteenth Amendment as it applies to one segment of the population but not another with the disparity based upon race (though she did note that John McCain is “pale” and “would probably want to be tan” while Obama “doesn’t have that problem, obviously”), her reasoning does not matter.

Now, I’m more than slightly embarrassed.  The piece got a pretty warm reception at Free Republic and at another couple of places, and as a guy who prides himself on knowing and understanding the United States Constitution, all I can do is shake my head in disgust.  The only explanation I can offer is that I had the Arizona immigration brouhaha on my mind following an interesting discussion I had with a law enforcement officer down there, and for that reason I was thinking of the Equal Protection Clause of the Fourteenth Amendment rather than Due Process Clause of the Fifth Amendment.  Therefore, the text should have read as follows, and has since been corrected as such (emphasis added):

A week ago, during the premiere of the new season of Jersey Shore, the perpetually orange, oompa-loompa-like girl from Marlboro, New York was shown applying a liberal amount of bronzer to her face and commenting that she no longer frequents tanning salons “because Obama put a ten percent tax on tanning.” (Try to ignore, if you will, her arrest the next day for drunk and disorderly conduct exhibited on the Seaside Heights, NJ boardwalk, though to stand head and shoulders above the rest of the drunk and disorderly crowd on the Seaside Heights boardwalk enough to get arrested is no small feat.)

Now, while Snooki did not bother to mention that the administration’s institution of the tax on tanning services is an overt breach of the president’s campaign promise to ensure that no one making less than $250,000 per year will see a tax increase, nor did she mention that the tariff likely violates the Due Process Clause of the Fifth Amendment as it applies to one segment of the population but not another with the disparity based upon race (though she did note that John McCain is “pale” and “would probably want to be tan” while Obama “doesn’t have that problem, obviously”), her reasoning does not matter.

If you’re one of the few thousand folks who stop by America’s Right each day, and if you’ve been hanging out for a while, you know that when I make a mistake I like to broadcast it far and wide.  I feel guilty.  The Internet is a strange place, and one of the gripes that I have about the Internet in general and the “blogosphere” (I hate that word) more specifically is the lack of accountability.  If I were to sit down and post something stating that President Barack Obama had a prosthetic nose, a good number of those few thousand folks might just believe it and subsequently spread the word.  That’s how credibility fades.  And when credibility fades for one site like America’s Right or any of the other relatively small sites with a loyal following, that effect is felt in other places as well.

Therefore, my little unwritten personal policy–broadcasting glaringly dumb mistakes far and wide–applies here.  Best yet, I think we can use it as a teachable moment for all of us as well.  Since I had Arizona’s much-maligned immigration law on my brain when writing about Snooki and her complexion, why not explain equal protection and due process in the context of both the tanning tax and Arizona’s law?  After all, while the problem that Eric Holder and his Justice Department has with the Arizona law seems now to be rooted in the Supremacy Clause, at first, if you recall, the problem Holder and so many others had was with the law as a purported instrument of discrimination.

Due Process, Equal Protection, and the Standards of Review

While it was an honest mistake on my part, here’s why what I originally wrote in “Why Snooki Matters” was wrong: Generally, when a law profoundly limits the liberty and ability of all people to engage in a certain activity, the proper claim would be one of substantive due process, whereas when a law limits the liberty and ability of or otherwise adversely affects one person or class of persons differently than others, it is an equal protection question. A law which enjoined everybody from buying deodorant would be a due process question, for example, while a law which prohibited only black people from buying deodorant would be an equal protection issue.

The problem, however (and this is a big “however”), is that unlike the Due Process Clause of the Fourteenth Amendment, the Equal Protection Clause of the Fourteenth Amendment does not have a corresponding provision in the Constitution applicable to the federal government and, therefore, equal protection claims are limited to actions taken only by individual states.   It’s a little easier to remember this way: Fourteenth Amendment applies to state and local governments, Fifth Amendment to the federal government.  So, when you look at the Due Process Clause, which appears in both the Fifth and Fourteenth Amendments, the Due Process Clause of the Fourteenth Amendment is applicable to state and local government action, while the Due Process Clause of the Fifth Amendment applies to action taken by the federal government.  Since there is no Equal Protection Clause in the Fifth Amendment, equal protection only applies to state action.

Make sense?  Well, here’s a wrinkle: In the case of abhorrently unreasonable discrimination by the federal government, the Due Process Clause of the Fifth Amendment will in many cases operate as a secondary guarantee of equal protection — even though the Equal Protection Clause of the Fourteenth Amendment would not apply in a particular situation, the federal action in question–a law or a tax–could very well violate the Due Process Clause of the Fifth Amendment.

When looking at matters which potentially run afoul of either the Due Process Clause of the Fifth Amendment or the Equal Protection Clause of the Fourteenth, the court will apply one of three standards:

First, there’s STRICT SCRUTINY.  If a case involves either a fundamental right or a suspect classification of persons, the government–local, state or federal, depending on the claim asserted–and not the challenger must prove that the action in question is essential to achieve a compelling government interest.  Fundamental rights include the right to vote, the right to property, the right of privacy (as it applies to marriage and parental autonomy, for example), the right to interstate travel, and even the right to refuse medical treatment, as well as your basic First Amendment-preserved freedoms of speech, association, worship, and so on.   Suspect classifications include race, national origin and alienage (resident alien, not illegal alien).  Therefore, any law denying the right to vote would be subject to strict scrutiny, as would a law mandating that white people, or people from Portugal, or resident aliens wait an extra six years before being eligible for a driver’s license, and the government enacting the law must show that it is necessary to achieve a compelling government interest.

Second, there’s INTERMEDIATE SCRUTINY.  If a case involves a quasi-suspect classification, which includes gender and legitimacy issues, then the action in question is substantially related to an important government purpose. While the issue of burden of proof is technically still up in the air, the burden in these cases is generally thought to be on the government.  In United States v. Virginia, for example, the United States Supreme Court held in 1996 that in gender discrimination cases the government must show an “exceedingly persuasive justification” in order for an action, discriminatory based upon sex, to be considered substantially related to an important government interest.

Finally, there’s minimal scrutiny, defined by the RATIONAL BASIS test.  In these cases, which is a catch-all for controversies not involving fundamental rights or suspect or quasi-suspect classifications, the burden of proof is on the challenger to prove that the government action in question is not rationally related to a legitimate government interest.  Unfortunately, this is a difficult test for the government to fail — while it might be tough to show that a discriminatory law is necessary to achieve a compelling government interest or substantially related to an important government purpose, it’s not difficult for the government to defend against a claimant by saying that a government interest is merely “legitimate.”

Now, applying what we’ve learned, let’s plod along.

The ‘Tanning Tax’ and Due Process

While I like a little color and some well-defined tan lines as much as the next guy, tanning is unfortunately not a fundamental right.  (Don’t tell Snooki.)  A lovely bronze pallor has no bearing upon a person’s ability to cast their vote, nor does it bear into the general right to privacy, which includes matters of marriage, sexual relations, childrearing, and even abortion.  It doesn’t affect interstate travel, nor does it impinge upon a person’s right to speak, worship or associate.  Therefore, there is no justification for automatic application of strict scrutiny, and the rational basis test applies.

Could a tax on tanning sessions be considered rationally related to a legitimate government interest?  Of course it could.  Congress, unfortunately, enjoys the plenary–read: exclusive–power to levy taxes as provided by Article I, Section 8 of the U.S. Constitution and, generally speaking, so long as a particular tax is reasonably related to the generation of revenue, it is considered rationally related to a legitimate interest of the federal government.

However, this is no ordinary tax.  Snooki, in her infinite wisdom, said it herself.  John McCain, she said, would likely never levy a tax on tanning services because he’s pale and would naturally want to tan, while President Obama obviously does not have the same problem.  That’s right, folks — the tax on tanning services included in the recently passed health care legislation unfairly burdens pale Americans, and discriminatory taxes are typically invalidated.

Of course, many on the left will argue that obtaining that George Hamilton glow is by no means compulsory, and for that reason white folks just aren’t burdened by this tax unless they want to be.  And to a certain degree they would be right, as the meager showing that a given law or tax has a discriminatory effect is not enough to prompt a need to show strict scrutiny.  Instead, it must be shown that there was actual discriminatory intent on the part of the government in enacting the legislation or levying the tax, and that can be done by showing that the law or tax is

  • facially discriminating, in that it has some sort of suspect classification on the face of the law itself, such as a law which specifically renders illegal the sale of dairy products to black Americans
  • applied in a discriminatory manner, in that it may be neutral on its face but, when applied, places an unfair burden on different classes of persons, OR
  • the product of a discriminatory motive, in that it may be neutral on face and in application, but has a disproportionate impact on a particular class

If any one of those three applies to the law or tax, and if the class in question is race, national origin or alienage, then that law or tax must satisfy strict scrutiny — the government has the burden to show that it is absolutely essential to achieve a compelling government interest.

So, in the case of the tax on tanning services which has MTV’s Snooki so angry, up-in-arms, and newly politically motivated, while it certainly seems neutral on its face–nobody is forcing Snooki or anyone else to strip down and go tanning–when applied it most definitely places an unfair burden on the palest among us, and will absolutely have a disproportionate impact on everyone but those who share President Obama’s skin tone, those who according to Snooki “obviously” don’t have the same problem as John McCain and the rest of us who strive for a healthy glow during those long winter months, or hope to obtain enough of a base tan so we don’t burn to a crisp on that weekend trip to the beach. Certainly, someone out there must have statistical evidence breaking down by race those who employ the services of a tanning salon, and that statistical evidence combined with the unnecessary inclusion of the tax within a bill intended for insurance reform should be enough to show that the tax is discriminatory.

Therefore, pursuant to the Due Process Clause of the Fifth Amendment, which can operate and has operated as a secondary guarantee of equal protection as it applies to federal action, the federal government has the burden of proving that levying a ten percent tax on tanning services–which unfairly burdens and has a disproportionate impact on certain races but not others–is absolutely, unequivocally essential to achieve a compelling government interest.

Can the government satisfy that burden?  I’d ask Snooki, but I think I lost her at “I made a big, big mistake the other day.”

The Arizona Immigration Law, Equal Protection, and More

So, if I were a liberal (and, as you know, I used to be), I would take a look at everything written above and say to myself: “Shoot, if the tanning tax is unconstitutional federal action because it places an unfair burden and has a disproportionate impact on white people, then the Arizona immigration law must be unconstitutional state action, right?”

And naturally, like any liberal, I’d be wrong.

First, the law is not discriminatory. It does not specifically, in its language and on its face, single out Hispanics or Latinos or any other class and is therefore not facially discriminatory.  Nor will it be applied in a discriminatory manner, as even though the vast majority of illegal immigrants are of Hispanic origin, racial profiling has specifically been prohibited in the language of the law itself.  Nor is it the product of a discriminatory motive, as it closely mirrors federal law, and nothing in the legislative record in Arizona or in D.C. shows that the specific intent behind either the federal or state legislation was to target a certain race, or anybody other than those in this country in violation of immigration law.  Furthermore, the United States Supreme Court has never held that illegal immigrants fall under the alienage category and therefore are a suspect classification.  Therefore, as far as the equal protection issue is concerned, the Arizona law must be reviewed under the rational basis test — the Arizona government must show that enforcing immigration law is rationally related to the legitimate government interest of saving billions of dollars, preventing kidnappings and drug activity and saving the lives of ranchers and law enforcement officers.   I think they can handle it.

Secondly, even if the law is deemed discriminatory, I have little doubt that the Arizona government can overcome strict scrutiny. More than half of Arizona’s $4 billion budget deficit goes to the education, incarceration and medical treatment of illegal immigrants.  The city of Phoenix has become the kidnapping capital of the United States of America and number two in the entire world, second only to Mexico City.  Ranchers who live along the border have been killed, law enforcement officers are being shot at on a daily basis.  The Court has a longstanding tradition of granting a state wide discretion when it comes to historic state police powers, those matters involving and affecting the health, safety and welfare of a state’s citizens — I have little doubt that the same would apply here.

Unfortunately, equal protection is no longer the crux of the federal government’s argument against the Arizona law.  Instead, it has been replaced by the argument that the Arizona law runs afoul of the Supremacy Clause, that because the state law conflicts with the federal law, the state law is void.  While I was in Columbia, SC for the last day of the Bar Exam, John Nichols of The Nation put it this way:

The most reactionary conservatives, many of them clutching unread copies of U.S. Constitution, are already screaming about the decision of Arizona Federal Judge Susan Bolton to block immediate implementation of central provisions of the state’s new anti-immigrant laws.

But all that Bolton did — with a decision issued hours before the law was to go into effect — was to assert one of the most basic principles of Constitutional law: that the federal government gets to set immigration policy.

This is not complicated stuff.

Article 1, Section 8 of the document gives Congress the authority “to establish an uniform Rule of Naturalization…”

This is not some totalitarian scheme hatched by James Madison and George Mason back in 1787.

It was one of the most practical things the founders did.

For any country, especially any large country, there has to be basic uniformity with regard to questions of who gets to enter the country and how. That does not mean that the federal government has done a good job of setting immigration policy — in recent years or, for that matter, historically. In fact, if there is one position that unites Democrats and Republicans, conservatives and liberals, Obama backers and Tea Partisans, it is that Congress needs to get serious about developing comprehensive immigration reforms. Unfortunately, there is less agreement on how those reforms might operate in a humane and functional manner. And that has created a stalemate.

It may be that the controversy regarding the Arizona law will break the stalemate in Washington.

But this does not justify the development of 50 separate-and-unequal state immigration laws. As Hannah August, a spokeswoman for the Justice Department, explained it late Wednesday: “While we understand the frustration of Arizonans with the broken immigration system, a patchwork of state and local policies would seriously disrupt federal immigration enforcement.”

That was what the Justice Department argued in asking Judge Bolton to intervene.

Nichols is right.  Article I, Section 8 does in fact provide Congress with the authority “to establish a uniform Rule of Naturalization,” and “the development of 50 separate-and-unequal state immigration laws” does in fact work against that justifiable need for “basic uniformity with regard to questions of who gets to enter the country and how.”  He certainly is right about that one.  Go figure … a liberal, quoting the Constitution — and Article I, Section 8 no less!

There are, however, a couple of problems with Nichols’–and therefore the federal government’s–arguments.

First, if the Arizona law as a separate-and-unequal immigration law is so frighteningly terrible, and if the lack of uniformity it fosters so hinders the ability of the federal government to prosecute immigration laws, what say Nichols–and, for that matter, Attorney General Eric Holder–about laws enacted by “sanctuary cities” such as San Francisco, New York City and 29 others?  Arizona’s immigration law actually mirrors the federal immigration law, whereas the laws in place in those 31 sanctuary cities actually countermand and stand in direct conflict with the federal laws.

Second, a law violates the Supremacy clause if it is in actual conflict with federal law or if it prevents achievement of a federal objective.  The Arizona law merely commands the enforcement of the federal law — it neither implements nor forbids conduct inconsistent with conduct required or forbidden under federal immigration law, nor does it interfere with the achievement of a federal objective; in reality, with regard to the latter, it assists in such achievement.

Third, if a law is neither in actual conflict with federal law nor prevents achievement of a federal objective, the federal law must be held to preempt the state law, and preemption is based upon legislative intent.  Congress, in creating the federal law in question, must have either expressly held that the federal law either specifically trump the state law, or implied that the federal legislation “occupy” the entire field — here, immigration enforcement.  However, whether express or implied, in each and every preemption case, the Supreme Court just last year held in Wyeth v. Levine that in cases affecting the health, safety or welfare of a state’s citizens, there will be a presumption that the federal law will not supersede state law unless it was the “clear and manifest purpose of Congress.”

So, there you have it.  The tax on tanning is unconstitutional, as it violates the Due Process Clause of the Fifth Amendment.  The Arizona law is absolutely constitutional, as it neither violates the Equal Protection Clause of the Fourteenth Amendment nor is superseded by federal law pursuant to the Supremacy Clause.  Once you understand the rules and tests and such, it’s really not that difficult to comprehend.  Considering that, two things amaze me: first, that Eric Holder and all of his peers at the Department of Justice are so blinded by state sovereignty and by any attempt to prevent the further erosion of the fabric of our nation from within that they would disregard simple standards set forth by our founders; and second, that everything written above–and, word for word, probably half of everything I’ve penned since returning from my absence in advance of the Bar Exam–came about because of Snooki.  Perhaps now I’ll have to actually sit down and try to watch that television show.

I don’t think so.  The Eighth Amendment, after all, protects Americans like me against cruel and unusual punishment.

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Comments

  1. Jersey Spores says:

    “Perhaps now I’ll have to actually sit down and try to watch that television show.”

    Careful Jeff, that show is like meth, very addictive….. and you feel really bad about yourself after it’s over, having watched it.

  2. Boston Blackie says:

    Jeff,
    Your explanation just proves once again why I became a bean counter and not a lawyer as my mother had hoped. I don’t think you have much to worry about when it comes to passing that pesky bar exam.
    “The city of Phoenix has become the kidnapping capital of the United States of America and number two in the entire world, second only to Mexico City. Ranchers who live along the border have been killed, law enforcement officers are being shot at on a daily basis.”
    You forgot to mention the million dollar bounty on the head of Sheriff Joe Arpio by the Mecican drug cartels. The scariest part is the cricket sounds coming from this admin when it comes to spealing out against it and protecting a law enforcement agent.

  3. And naturally, like any liberal, I’d be wrong.

    Best line of the whole piece.

    It looks like there’s more to Snooki than big hair, cleavage, and leathery skin. A tiny ounce of logic found its way out into the open. Very interesting analysis of the tanning tax….which bothered me before (I’m one of those “pale” white girls referred to, thus need a base tan every summer), and now angers me. It never crossed my mind that only “white” people would really use such a service, thus this tax could be construed as discriminatory. Who has the cajones to take this on?

    Again, you blow me away with your knowledge and grasp of Constitutional Law. Which really begs the question: How in the world did Obama teach this stuff in his former life?

  4. …..and looks like I screwed up the codes to italicize just one part. Sorry about that.

  5. Dee says:

    Thank you for clarifying the difference. I read this morning that ICE is not readily deporting illegal students under the age of 16 who have been in the country for years. The article stated that they had to prioritize and go after those who commit crimes. It also stated that this would give those students the chance to become citizens if they complete high school and either attend college for 2 yrs or serve in the military.
    I guess I don’t understand the meaning of illegal. As Bill Clinton would say “it depends on what illegal is”. Hurry up 2012.

  6. Yawn says:

    Hypocrisy, and fewer brains than Snooki.

    AUSTIN, Texas (Reuters) – President Barack Obama attacked the economic policies of his Republican predecessor George W. Bush in Bush’s home state on Monday as evidence of the way Republicans would operate if given power in November 2 U.S. congressional elections.

  7. Anonymous says:

    Does he not get that this is no longer D v. R when you have an ocean of Independents/Libertarians and a totally p o’d electorate?

  8. Anonymous says:

    Mr. President,

    What do you do when you have driven to the edge of a cliff?

    Put the car in D, and drive forward….. or put it in R and reverse a bit?

  9. T.I.M. says:

    Jeff:
    That’s one epic of a mea culpa — free law lesson included. Perhaps Snooki was more interested in Equal Application (of tan) vs Equal Protection (vs sunburn). Speaking of which, did anyone else notice the color job NBC did on John Boehner on Sunday’s “Meet The Press”? Intentionally or not, Mr.
    Boehner came across as a glowing orange.

    Federal law makes it illegal to enter the US without authorization. Isn’t Arizona just saying that (with the exception of D.C.), it’s impossible to enter the US without entering one of its states?

    And finally, with the exception of albinos, aren’t we all colored?

  10. whats_up says:

    Jeff,

    With all due respect perhaps you should look into the claim of Phoenix being only second to Mexico City when it comes to kidnappings. This is a false statement made up and kept alive by the media. It is not true…

    http://www.allbusiness.com/crime-law/law-special-investigative-forces/14669178-1.html

    …From our internal experience in the last year,” Johnson said, “Mexico by far has been the biggest location for kidnappings” followed by Honduras, Venezuela, Nigeria and the Philippines. The company has handled domestic cases, but Thompson said they don’t compare in volume to overseas incidents. Thompson said the company annually dispatches a consultant to handle about 50 to 100 cases a year. Mexico City; Caracas, Venezuela; and Tegucigalpa, Honduras, are the three cities where they work on the most kidnapping cases, he said.

    Scott Stewart, vice president of tactical intelligence for Stratfor, an Austin global intelligence company, separately chimed in: “According to our analysts, there is no way that Phoenix is the No. 2 city in the world for kidnapping, and there are significantly more kidnappings in many other cities throughout Latin America. San Salvador, Guatemala City, Bogotá, as well as several cities in Mexico, certainly have higher kidnapping rates than Phoenix.”

  11. Gail B. says:

    Jeff, think about it–you have just graduated from law school and have been cramming HOW MUCH LAW into your manatee head for the Bar Exam?!

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