- Issue 1 – January 2018, Volume 45

Economic Protectionism: Irrationally Constitutional

Comment by: Joshua Park

45 PEPP. L. REV. 149 (2018)

The Constitution is built on the principle that all citizens are created equal. Naturally, we believe that no law should be passed solely for the sake of benefiting one group over another. Yet, governments continue to pass economic regulations that have no purpose other than maintaining wealth within a specific group, and the judiciary continues to uphold such regulations. While the judiciary purports to uphold challenged legislation only if it passes “rational basis review,” the term “review” is a misnomer because the analysis has essentially become automatic deference.

Under the judiciary’s modern treatment of the Equal Protection Clause, successfully challenging these regulations is nearly impossible unless the regulations address matters that the court deems worthy of intermediate or strict scrutiny. But no court has ever deemed economic regulation to be worthy of such scrutiny, even though such regulation is capable of unconstitutionally facilitating naked transfers of wealth to businesses that enjoy high levels of political clout. To remedy this regulatory blind spot, this Comment analyzes the circuit split regarding whether economic protectionism should be a legitimate government interest. After establishing that it should not, this Comment proposes a new approach for equal protection challenges to economic regulations.

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