Legal Commentary

Enquist v. Oregon: Right Result, Wrong Reason

By Jack M. Balkin

Today in Enquist v. Oregon the Supreme Court rejected the Equal Protection claim of a government employee who claimed she had been dismissed for arbitrary and malicious reasons. The Court held that this so-called "class-of-one claim" ? in which the plaintiff alleges that she is wrongly discriminated against not because she is a member of a protected class but just because she is herself ? cannot be brought by government employees because when the government acts as an employer rather than a sovereign it enjoys broad discretion to decide whom to hire and fire. The Court?s rationale here (rightly rejecting the plaintiff?s claim in my view) exposes a flaw in the Supreme Court?s approach to irrational governmental action.

The majority opinion, written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, Thomas, Breyer and Alito, rests on the claim that where the governmental actor has discretion, her action cannot be challenged for irrationality. While discretionary governmental action can be challenged as based on illegitimate criteria (the race or sex of the person affected, for example), irrationality alone is insufficient. But why? The dissent rightly takes the majority to task for its claim that where governmental actors enjoy discretion ? and only there ? governmental action cannot violate Equal Protection for failing rationality review. But rather than conclude, as does Justice Stevens? dissenting opinion, joined by Justices Souter and Ginsburg, that all governmental action (whether by governmental employers or other government actors) must at least be rational, this case and the examples ? both real and hypothetical ? explored by the Justices in this case, expose why rationality has nothing to do with the values underlying Equal Protection at all. Irrational decisions by governments are stupid, irritating (often in the extreme), possibly quite harmful but not, without more, actions that violate Equal Protection.

The majority must distinguish the facts of this case from its prior decision in Village of Willowbrook v. Olech in which the Court allowed a homeowner to sue the municipality for requiring him to provide a larger easement to the village in order to connect to the public water supply than it required of all other homeowners. There the Supreme Court held that because the Equal Protection Clause protects individuals not groups, it must be the case that this so-called "class of one" claim was possible. But that conclusion does not follow. The question is not whether the Equal Protection Clause protects individuals rather than groups (which is correct) but what it protects them from? As we all know, sometimes the government is stupid and irrational. Equal Protection is not a cure for government ineptitude or for the hazards of bureaucracy more generally. If it were, the courts would be busy indeed. More importantly, this isn?t a harm that relates to the guarantee that Equal Protection provides. The value that underlies that clause is the moral equality of all persons. As such, it protects us from governmental actions that treat some people as of less worth than others. In my view, state action that demeans anyone it affects violates Equal Protection. Truly irrational governmental action (action based on no reason) does not demean. It is simply careless, stupid and harmful but as it is based on no reason at all, it doesn?t treat some people as less worthy than others.

In the majority?s view, the reason that Oregon didn?t violate the Equal Protection clause was grounded in part on the at-will employment doctrine. Implicit in the contrast with Olech is the claim that when the government acts as a regulator, it is required to act rationally because no analogous background law exempts it from rationality review. The problem with this explanation is that it is hard to see why the background law of at-will employment (which has been limited anyway by statute) would or could exempt the governmental actor from a constitutional requirement (as the dissent points out).

A better way to think of these two cases is this: Equal Protection doesn?t require rationality but sometimes the government?s action violates other norms or constraints on its action. Consider the third case (a hypothetical) introduced by the majority in Enquist. A police-officer who stops some but not all speeders for no particular reason. The majority argues that the police officer has discretion to stop only some speeders and so is exempted from Equal Protection rationality review. This account seems doubly wrong. First: as I already argued, why think that the discretion accorded police officers could exempt this governmental actor from complying with what the constitution requires. After all, the fact that the police office has discretion doesn?t allow him to stop only Blacks. Second, there does seem to be something disturbing about a police officer who uses his discretion to in a ?malicious? way ? to stop people based on bad reasons that don?t track any customary Equal Protection categories. What about a police officer who stops speeding SUVs but not speeders of more fuel efficient cars? But what is wrong with this is NOT an equal protection issue (unless and until our attention to global warming changes enough so that being singled out based on ones polluting habits becomes stigmatizing). In the mean time, what makes this action wrong is that it conflicts with the police officer?s obligations as a police officer to be guided by some criteria and not others in exercising that discretion. In other words, the police officer does not enjoy absolute discretion. Rather, he has discretion to act within limits. But the limits are not Constitutional in scope. Instead, they derive from the internal standards of policing, both those explicit in his job description and those implicit in his role as a police officer.

What this trio of cases demonstrate (Equist, Olech and the hypothetical police officer) is the fallacy in seeing rationality as constitutionally required. As the rationality review ?with bite? cases show ? cases like Cleburne and Romer ? rationality review is best seen as a catch-all category. It catches those instances of discrimination that distinguish among people on the basis of a trait that we don?t subject more generally to heightened review but which can, on occasion, be used in a manner that treats some people as less worthy than others. In these cases, the problem is not that the classification is irrational but rather that it is demeaning. Irrationality itself has nothing to do with equality.

Full post as published by Balkinization on June 09, 2008 (boomark / email).