Michael Coenen (Louisiana State University, Baton Rouge Paul M. Hebert Law Center) has posted More Restrictive Alternatives (North Carolina Law Review, Vol. 96, 2017) on SSRN. Here is the abstract:
Courts often fault governments for pursuing their regulatory interests in an unnecessarily restrictive manner: Indeed, and as is well appreciated by courts, litigants, and scholars alike, the availability of a “less restrictive alternative” will often spell the doom of a constitutionally suspect law. Sometimes, however, this logic gets flipped on its head, with courts faulting governments for failing to utilize alternatives that are “more restrictive” rather than less. This Article collects examples of what I call “more restrictive means analysis” in U.S. constitutional law and attempts to make sense of its analytical underpinnings. Specifically, the Article suggests that courts invoke “more restrictive alternatives” for at least one of two purposes: (a) to undercut the government’s claim that a regulatory interest requires it to discriminate in a constitutionally problematic manner (highlighting what I call an “equality-based” defect in the law under review); and/or (b) to cast doubt on the government’s commitment to a claimed regulatory interest (highlighting what I call “sincerity-based” defect in the law under review). The Article also analyzes the various types of defenses the government might raise on behalf of its decision to regulate less restrictively, such as the claim that a “more restrictive alternative” would fail to increase regulatory benefits, the claim that it would increase administrative costs, and the claim that it would undermine important “lenience-related” interests that the “less restrictive” law is better capable of promoting. The Article additionally considers the relationship between the constitutional import of a “more restrictive alternative” and the constitutional validity of the alternative itself, suggesting somewhat counterintuitively that “more restrictive alternative” of questionable constitutionality can support invalidation of the laws with which they are compared. The upshot of this analysis is a novel and systematic framework for thinking about “more restrictive alternatives” and their place within U.S. constitutional law.