I previously explored the rule set down by the Supreme Court (“Court”) in Parker v. Levy[1] that “the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs.”[2] After recently coming across some material on the level of scrutiny applied to criminal statutes regulating economic activity under the Commerce Clause in Article I of the Constitution of the United States, I dug a little deeper. And it surprised me.

The Parker Court heard Captain (CPT) Levy’s vagueness challenge to Article 133 of the Uniform Code of Military Justice (UCMJ). This article prohibits “conduct unbecoming an officer and gentleman.” Its two elements are that (1) an Accused did or omitted to do a certain act or acts and, (2) that under the circumstances, these acts or omissions constituted conduct unbecoming an officer and gentleman.”

Specifically, the Army prosecuted CPT Levy under this Article (10 U.S.C. § 934) for comments he made about the Vietnam War to enlisted persons during their training. Levy challenged this statute as unconstitutionally overbroad and vague during his direct appeal and subsequently on collateral attack in federal court.

The Court affirmed his conviction, concluding with the following seemingly passing reference: “[b]ecause of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs.”[3]

I explored the context and background surrounding Articles 133 and 134 (the two most vague criminal statutes in military law), and explained the Void for Vagueness Doctrine in a previous post. After researching the cases cited by the Court in Parker, I summarized that, generally speaking, legislative bodies are virtually free to regulate activity “economic” in nature, but a higher scrutiny is invited when a statute criminalizes a fundamental right. That is why the Court has only struck down less than a handful or so criminal statutes outside the First Amendment context since the New Deal.

Over a series of posts, I hope to explore the doctrine articulated in Parker from a different perspective; specifically, to explore it through the lens of what level of scrutiny the Supreme Court applies to criminal statutes governing economic activity, and what that means for military law and society.

As a refresher (or introduction), courts apply one of three levels of scrutiny when analyzing the constitutionality of a challenged statute: (1) Strict Scrutiny, (2) Intermediate Scrutiny,[4] and (3) Rational Basis. The following is a short summary of each:

Strict Scrutiny

• Law will be upheld only if (1) necessary to achieve compelling government purpose and (2) narrowly tailored.
• Usually applied to statutes concerning exercise of fundamental rights (i.e. Bill of Rights).
• In Equal Protection cases, generally applied to classifications based upon race, national origin, status as alien (with several exceptions).
• Government bears burden; usually fatal.

Intermediate Scrutiny

• Law will be upheld if substantially related to an important government purpose.
• In Equal Protection cases, generally applied to classifications based upon gender and non-marital children.
• Government bears burden.

Rational Basis

• Law will be upheld if it is rationally related to a legitimate government purpose.
• Generally applied to all laws not subject to strict or intermediate scrutiny.
• Challenger bears burden; rarely fatal.

The Court first applied rational basis in Nebbia v. New York, 291 U.S. 502 (1934). During the Great Depression, the New York legislature established a Milk Control Board to set the minimum and maximum prices retailers may charge for a quart of milk. The Board set these prices after an extensive amount of research. A store owner sold two quarts at a non-authorized price and was subsequently convicted of violating the Board’s order. Mr. Nebbia, the store owner, challenged the law and argued it violated his due process rights guaranteed by the Fourteenth Amendment.

The Court disagreed. It reasoned that the right to due process under the Fifth Amendment, applied to the States through the Fourteenth Amendment, does not prohibit regulation for the public welfare. Such regulation need only be consistent with due process. In this case, due process was guaranteed so long as “the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.”[5] Since the law establishing the Milk Control Board had “a reasonable relation to a proper legislative purpose,” and was “neither arbitrary nor discriminatory, the requirements of due process [were] satisfied. . . . “[6]

A footnote in a subsequent decision four years later announced that other types of statutes would receive a higher level of scrutiny.

Staying with the milk industry, Congress had earlier enacted the Filled Milk Act in 1923, which prohibited the shipment in interstate commerce of skimmed milk made to look and taste like milk or cream through the addition of “any fat or oil other than milk fat. . . .”[7]

The federal Government indicted Carolene Products Company for violating the Act by selling packages of “’Milnut,’ a compound of condensed skimmed milk and coconut oil made in imitation or semblance of condensed milk or cream.”[8]

Similar to Nebbia, the Court again upheld the statute after applying Rational Basis scrutiny. However, it contemplated in a footnote that higher levels of scrutiny might apply in subsequent cases. “There may be a narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within th4e Fourteenth.”[9] The Court went on to describe some examples, but stopped short of announcing these higher levels of scrutiny.

It soon did so in a deeply controversial decision, Korematsu v. United States, 323 U.S. 214 (1044).

     Korematsu is a controversial decision arising out of actions taken by the federal government a few months after the attack on Pearl Harbor. But this summary limits its discussion of the case to the facts and circumstances surrounding the first application of strict scrutiny.

Mr. Korematsu, a loyal American of Japanese ancestry, was convicted of remaining in a designated military area (basically, the entire West Coast was a “military area” in one way or another) in violation of a statute that required all persons of Japanese ancestry to be excluded from all military areas. The rationale for the statute was that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. . . .”[10]

The statute withstood strict scrutiny. The Court began by saying, “[i]t should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect.”[11] That does not mean the restrictions will be automatically unconstitutional, but “courts must subject them to the most rigid scrutiny.”[12] In this case, “[p]ressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.”[13]

Under this rationale, the Court concluded the asserted pressing public necessity—combating espionage and sabotage—was compelling enough to justify the curtailment of civil rights required by the statute. Over time, the Court would further develop its “narrowly tailored” requirement.

The Court rounded out its scrutiny trifecta with the first application of intermediate scrutiny in Craig v. Boren, 429 U.S. 190 (1976). This one involved booze.

An Oklahoma statute “prohibit[ed] the sale of ‘nonintoxicating’ 3.2% beer to males under the age of 21 and to females under the age of 18.”[14] Mr. Craig and a vendor of such beer sued to block enforcement of the statute because it violated the Equal Protection Clause (classification based on gender).

Interestingly, the American Civil Liberties Union (ACLU) wrote an amicus brief “urging reversal.”[15] The author of the brief? None other than Ruth Bader Ginsburg, future Supreme Court Justice and liberal icon.

The Court agreed. In doing so, it articulated the standard applied to intermediate scrutiny analysis of classifications based on gender. “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”[16]

In this case, the statute served an important governmental objective—traffic safety. However, the statistics introduced failed to establish that a gender classification was substantially related to achieving that goal. “Even were this statistical evidence accepted as accurate, it nevertheless offers a weak answer to the equal protection question presented here.”[17] Failing intermediate scrutiny, the statute was struck down as unconstitutional.

The Court applies rational basis to criminal statutes governing economic activity. This means it applies rational basis to vagueness challenges to criminal statutes under the UCMJ (instead of strict scrutiny with military necessity as the compelling interest), even though it applies strict scrutiny to similar challenges to state and federal statutes. In later posts, I hope to explore criminal statutes regulating economic activity in a little more detail before coming back to what this might mean for military law and society.

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[1] 417 U.S. 733 (1974).

[2] Id. at 756.

[3] Id.

[4] Technically, there is a level of scrutiny known as Intermediate Scrutiny-With Bite, but our purposes don’t require summarizing the distinction.

[5] Id. at 525.

[6] Id. At 536.

[7] United States v. Carolene Products Co., 304 U.S. 144, 146 (1934).

[8] Id.

[9] Id. at 152 n.4.

[10] Id. at 217.

[11] Id. at 216.

[12] Id.

[13] Id.

[14] Id. at 192.

[15] Id. at 190.

[16] Id. at 197.

[17] Id. at 201.