Engquist and the Erosion of the Equal Protection Clause: An Attempt to Stop the Creep of Irrational Dicta
University of California Hastings College of the Law
November 15, 2009
Hastings Law Journal, Vol. 61, p. 969
This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values.
Number of Pages in PDF File: 30Accepted Paper Series
Date posted: November 16, 2009 ; Last revised: November 14, 2012
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