AJ and James have had a little disagreement about the constitutionality / advisability of age-discrimination laws. I’m not sure that my ideas on the advisability of such legislation would add much to the discussion, but have a few comments to add as to the constitutionality of legislation that targets certain age groups.

The Supreme Court has developed three tests that can be used to evaluate the constitutionality of legislation that targets a select group and poses a potential violation of equal protection rights. Laws that violate the most fundamental rights granted to individuals are subject to ‘strict scrutiny‘ which forces the government to prove that the legislation in question is the best way of furthering an important interest. Laws the violate rights that are less fundamental, but still important, are subject to ‘intermediate scrutiny’ which forces the government to prove that the legislation in question is closely tied to an important state-interest.

Tax breaks to the elderly (or tax impositions on the young) are subject to the least rigorous scrutiny, the ‘rational basis test.’ The rational basis tests asks the government to prove that it is furthering any legitimate interest.

I believe that tax-breaks for the elderly very clearly fall into the least rigorous category of scrutiny although it looks like AJ doesn’t agree. AJ misconstrues the Age Discrimination in Employment Act to prohibit private entities from favoring older workers over younger ones. In General Dynamics Land Systems v. Cline (2004), the Court held that “the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one.”

AJ contends that ageist legislation should be considered equal to racist legislation with respect to its reprehensibility when applied to the Fourteenth Amendment. I couldn’t agree more. What AJ ignores however, is all the legislation on the federal and state level that favors one group over another. Not all legislation that considers race is ‘racist’ (implying the pejorative) and not all legislation that considers age is ‘ageist.’ Tax breaks to the married couples, economic incentives for inner-city development, and grants for AIDS research are all examples of economic decisions that are designed to promote an interest that elected officials find desirable. Unfortunately, promoting these ends comes at the cost of ignoring other portions of society (single individuals, suburban development, and SARS research, respectively) but that is what makes legislating a difficult job.

In his follow up to James’ comment, AJ argues that:

I touched on this distinction in my post by addressing the concern that the elderly are less able to pay this tax. While some elderly may be less able, the remedy is not to favor all elderly but is to favor all the unable.

AJ makes a massive policy decision that flies in the face of the judicial ideal that grants deference to the legislative branch in policy matters. AJ addresses the ‘concern’ of the government by proposing that ‘the remedy is not to favor the elderly.’ What if the legislature feels that their tax is a better way of achieving their desired end?

AJ’s US v. Butler analysis is also way off. The Court in Butler very specifically choose to defer a ruling on the legitimacy of the law that benefited agricultural interests:

We are not now required to ascertain the scope of the phrase “general welfare of the United States,” or to determine whether an appropriation in aid of agriculture falls within it. Wholly apart from that question, another principle embedded in our Constitution prohibits the enforcement of the Agricultural Adjustment Act. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end.

Butler contained more than “overtones of federal-state relation”- it flat-out refused to rule on any other subject. AJ’s Steward analysis is too convoluted to be constructed into an argument: “demonstrably for the general welfare as opposed to blatantly in favor purely of farmers.” I’ll let him explain later.

Choosing to grant across-the-board tax cuts to elderly individuals is simply another tool in the legislative budgetary armament. If elected officials believe that their constituency desire tax breaks for the elderly then I see no reason why they should not be allowed to turn that sentiment into law.


3 Responses to “A Constitutional View On Age-Discrimination”

  1. 1 James

    This is a solid post.

  2. 2 AJ

    I am ready to defend my Butler interpretation. According to the textbook I use, “The majority in Butler concluded that the law was unconstitutional because what it imposed was not truly a tax. Instead, government was taking money from one group (the processors) to give to another (the farmers), and doing this to regulate farm production, a matter of intrastate commerce reserved for state regulation.” This means that, although the regulation was coded in the language of taxation, the arbitrariness of the code made the federal law not a tax. Kedar and James are right in claiming that Butler was ultimately a state-federal powers case, but they ignored the important sub-argument that removed Butler from the realm of taxation (which is unquestionably the realm of the federal government) to the realm of regulation (which is more contentious).

    The parallel I was attempting to draw, despite my half-cocked phrasing and argumentation, is that the arbitrariness observed in Butler is analogous to the arbitrariness observed today in Dallas. Therefore, the property tax code is not really a tax code at all, but a regulation of age. While regulating business as was examined in Butler may be reserved for the states, the 14th Amendment denies all levels of government the power to regulate how old you are.

  3. 3 Kedar

    Cute analysis, AJ. The Court held in Butler that “the tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end.” You’re latest interpretation of Butler (the correct one) doesn’t necessarily support your ultimate argument.

    The law before the court in Butler was interpreted by the Court to be an unlawful extension of the federal government’s power to regulate intrastate commerce. The biggest problem with the law in Butler was not its arbitrariness, but quite the opposite- its very specific and transparent ploy to redistribute money from one group of people to another. The law was not struck down because it arbitrarily targeted one group. It was struck down simply because it acted upon one group in a manner that Congress had no right to act upon.

    The Court had to engage in intent-based speculation in order to reach its end. It didn’t simply rule that a tax that furthered a particular end was unconstitutional, it held that the specific law in question furthered an position that Congress had no power to push:

    The power of taxation, which is expressly granted, may, of course, be adopted as a means to carry into operation another power also expressly granted. But resort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.

    Therefore, we need to begin analysis on the rationale behind local government’s decision to enact legislation that grants senior citizens a certain tax-cap. I’m not qualified to speculate on why the local government decided to enact this legislation or what this specific legislation entailed and I’m not going to make any assertions that I can’t back up. Until you can find more information on this specific piece of legislation, I suggest you do the same.


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