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I am confused about the meaning of necessary.
strict scrutiny: law will not pass unless it's necessary to achieve a compelling government interest and narrowly tailored to achieve that interest.

doesn't necessary mean the least restrictive? if you could find a less restrictive solution, then the law wouldn't be "necessary" - it's necessary because you have no other choice.
so doesn't "necessary" contradict the underlined part above? because narrowly tailored doesn't mean least restrictive, it just means kind of restrictive.

Well, given chevron deference necessary is really just anything that the government says they need to do a certain thing. So, if you want to stop the spread of a disease the government could say it is necessary to shut down most businesses/organizations and stay locked in your homes. However, it could be argued that such a measure is not narrowly tailored enough as it goes far beyond just stopping the spread of a disease (damage to businesses, families, mental health, etc). There are far better examples and I am sure others will come along and give them. But it basically comes down to: Does the government feel as though an action is necessary and if it is, does the action specifically target what the government is trying to target and what are the possible externalities.

kevinandre wrote: ↑

Sat Apr 17, 2021 2:40 pm

I am confused about the meaning of necessary.
strict scrutiny: law will not pass unless it's necessary to achieve a compelling government interest and narrowly tailored to achieve that interest.

doesn't necessary mean the least restrictive? if you could find a less restrictive solution, then the law wouldn't be "necessary" - it's necessary because you have no other choice.
so doesn't "necessary" contradict the underlined part above? because narrowly tailored doesn't mean least restrictive, it just means kind of restrictive.

you could write a paper on whether 'necessary, 'narrowly tailored', and 'least restrictive' are in fact three different tests or all the same test. but it doesnt matter, and stop trying to think of con law in terms of regular english.

Imagine this: The government has two methods of achieving some very important interest. Since it has two methods, neither of the methods alone are strictly 'necessary.' Method 1 is not 'necessary' because method 2 exists, and method 2 is not 'necessary' because method 1 exists. this is true regardless of which method is 'less restrictive.' but of course that creates an issue-- one of them (the less restrictive one) has to be valid, even though not strictly or logically "necessary." maybe the least restrictive method here is actually a rule that says "People have to chose method 1 or method 2" (even though that wont work in all situations). So "neccesary" is sometimes more like: "Is it necessary that the government acts", and then the narrow tailoring and/or less restrictive means test asks if the action is the right one. sometimes they are all combined into one paragraph. sometimes court wont even say what level of scrutiny it is applying. we just have to deal with it.

but relly, just treat conlaw like its own closed law universe. WHen the court says necessary, it means "X," not the webster's definition of necessary. try to figure out what that X is from the cases you read. When the court says 'narrowly tailored' it means Y. Try to figure out what Y means. treat it as a separate language, rather than trying to translte it. this helped me immensely.