Nklenske Protection the First Thing

Nklenske

Protection

The first thing that needs to be decided is whether the Equal Protection is applicable to Mr. Smith. Equal protection comes from the Equal Protection Clause found in the Fourteenth Amendment to the Constitution of the United States. As part of the Fourteenth Amendment, it is only applicable to state action. If state action is involved by means of a regulation that affects only certain persons or a class of people, then an equal protection issue is raised. (Barron, 2005; p. 16). The next step is to determine what kind of class the protected party belongs to. If the individual is being treated differently because of their race, then the court will apply a strict scrutiny test to determine if the individual's equal protection right is violated. Under the strict scrutiny test, the court asks whether the law is necessary to achieve a compelling government purpose. The state has the burden of proving that a compelling government purpose exists. (Graham, 2003; p. 37).

Because the Federal Bureau of Investigations is a federal agency, there is no state action and therefore no equal protection right that Mr. Smith can claim. As his attorney, I would advise him that he instead should pursue a Due Process claim under the Fifth Amendment of the Constitution of the United States. Under such a claim one must first determine whether a fundamental right is involved. A fundamental right are such rights as the right to privacy, interstate travel, voting and the first amendment. (Chemerinsky, 2002; p. 156). Since Mr. Smith's case does not fall into any of these categories, no fundamental right is involved. Being the case, the standard of review used by the courts will be the rational basis test. According to this test the court will consider whether the law is rationally related to a legitimate government purpose. It will be Mr. Smith's burden to demonstrate why the F.B.I.'s recruiting rule is not rationally related to a legitimate government purpose. This will be a tough burden to satisfy, as national security is a legitimate government purpose. Korematsu v. U.S., 584 F.Supp. 1406 (1984). Since the security threat comes from a pro-white group, a non-white officer will be ineffective in alleviating the national security threat. My overall advice to Mr. Smith would be that he has a weak case, at best.

Question Two:

To evaluate whether Susie has a valid equal protection claim, one must start by determining whether the city ordinance is a state action. As a city is a branch of the state, the smoking ordinance would be considered a state action. The next step is to determine whether she belongs to a suspect class or whether a fundamental right is being violated. Although being a woman places her in a quasi-suspect class, this ordinance does not involve a distinction between the genders. Instead the issue is between smokers and non-smokers and as such, there is no suspect class involved. Furthermore, there is no fundamental right involved as neither the right to smoke or to open a business is considered a fundamental right. (Chemerinsky, 2002; p. 157).

Under these facts, the court will evaluate Susie's claim using a rational basis test. According to this test, the court will determine whether the ordinance is rationally related to a legitimate government purpose. The burden will be on Susie to show that the ordinance is not rationally related to any legitimate government purpose. (Barron, 2005; p. 20).