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Saturday, May 19, 2007

Congressional Power to Enforce Equal Protection

It's no secret that equal protection doctrine has become more and more incoherent over the past fifteen years. The Supreme Court has upheld government action to which it's applied strict scrutiny (Grutter) and all-but-strict scrutiny (Nguyen v. INS), but has struck down action under the rational basis standard (Romer -- not to mention the rational basis "plus" cases from the 1980's and the "pure irrationality" case of Allegheny Pittsburgh v. Webster County in 1989). And as I discussed in a post earlier this month in Village of Willowbrook v. Olech the Court allowed a "class-of-one" equal protection claim to go forward without any discussion of the implications that holding might have for some basic concepts in equal protection law.

One way to understand these developments is as proof that the Carolene Products approach to equal protection, whatever its merits and to whatever degree courts ever based decisions on it, has run its course. In its place we find an extreme amount of ad hoc judicial decisionmaking. This strikes me as inevitable, given the singularly non-legal content of most of equal protection. Beyond a core commitment to racial equality with regard to certain civil rights, and a broad but vague concern for "class legislation," the equal protection clause doesn't supply determinate answers to questions. Commonly understood, Footnote 4 provided a tool to assist courts in answering equal protection questions fairly accurately if indirectly, through a political access approach.

All this is reasonably uncontroversial, at least in this oversimplified form. What it suggests to me, though, is that equal protection ought to be susceptible to broader congressional enforcement power -- broader, that is, than its power to enforce other 14th Amendment provisions and certainly broader than indicated by the analyses of this power in Kimel and Garrett, the early post-Boerne cases construing the Section 5 power in the equal protection context. First, the legal vacuousness of the equality guarantee must mean, it seems to me, that its meaning must turn on social perceptions of what constitutes "fair" treatment, or classifications in pursuit of a public purpose, or, conversely, legislation simply designed to oppress one class for the benefit of another. Second, it seems to me that a lot of equal protection judicial doctrine (certainly rational basis review and even heightened scrutiny for gender when, as in Nguyen, the classification is upheld) reflects only what courts feel they're competent to say in equal protection cases, rather than solid statements about what equal protection really requires. Thus, even assuming judicial supremacy, the fact is that courts in equal protection cases speak less law than what appears at first blush.

So we're left with a provision that courts have a hard time applying confidently, where there's less in the way of supreme judicial statements of law, and which seems uniquely receptive to social judgments. These considerations seem to make a case for broader congressional enforcement power, even assuming the judicial supremacy model of Boerne v. Flores. I started fleshing this idea out in an article published in the Tulane Law Review, and hope to keep working on it. If nothing else, a focus on congressional power seems more fruitful than more academic analysis of a judicial doctrine that seems to have reached the end of the line.

Posted by Bill Araiza on May 19, 2007 at 06:20 PM | Permalink


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