When Constitutional Tailoring Demands the Impossible: Unrealistic Scrutiny of Agencies?

Abstract

Scholars have raised various objections to the last and often decisive (narrow tailoring) prong of the different forms of heightened scrutiny, and these problems may become acute when courts consider constitutional challenges brought against government entities that enjoy far more truncated powers than do legislative bodies. This Essay argues, however, that agencies should enjoy no special dispensation for failing to consider less restrictive means simply because the legislature has failed to empower them to adopt such alternative courses of action.