Take care that the laws be faithfully litigated.

• Jurisdiction: United States
• Date: 01 December 2012
• Author: Rider-Longmaid, Parker

3. AN ARGUMENT FOR HEIGHTENED AUTHORITY IN THE EQUAL PROTECTION CONTEXT

I am concerned in particular in this Comment with the President who faces the difficult decision of whether to defend a statute he believes violates equal protection. The President's authority not to defend constitutionally objectionable statutes is not uniform across all areas of constitutional law. (93) While I have argued above that the Dellinger/Johnsen framework can be adapted to the nondefense context, in this Part I turn to my argument that the equal protection context is one of the more compelling areas for presidential assertion of the prerogative not to defend a statute. I assert that the President's authority to make the nondefense decision is heightened in the equal protection arena.

This authority--or responsibility--is especially compelling where the President determines that Congress's classification should receive more than just rational basis scrutiny. (94) First, I begin by incorporating equal protection scholarship to argue that the President has the duty to ensure the protection of underenforced rights. I then assert that he thus also has the responsibility to alert the Court, through nondefense, where circumstances warrant heightened scrutiny. Finally, after establishing this responsibility, I offer a new model for nondefense where the President believes that a statute should be evaluated under heightened scrutiny pursuant to the Constitution's guarantee of equal protection.

The President has his own institutional competencies, so I do not contend that the standard he applies should be the same as that which a court reviewing the statute would apply. Instead, based on the factors discussed in this Part, I contend that the relatively open texture of Dellinger's nondefense decisionmaking model should be elaborated with greater precision for equal protection nondefense decisions. The refinements I offer help both to contextualize the exceptional nature of the nondefense decision (and thus serve as a limiting principle for future Presidents who might seek to aggrandize their office through selective enforcement or defense of statutes) and to emphasize the importance of the distinction between nonenforcement and nondefense in the equal protection context.

1. The Case for Greater Authority Where Equal Protection Demands Heightened Scrutiny

   Where the President believes a statute is unconstitutional on equal protection grounds, and specifically where he believes the standard of review should not be rational basis, but rather a heightened form of scrutiny, he has increased nondefense authority and should engage in his own version of searching review before making the final decision of whether to defend the law. In this Section, I argue why we should have a new framework for presidential nondefense authority in such situations. I do not address other areas where one might argue that important rights are at stake--for example, the First Amendment and fundamental rights (including those protected by substantive due process). Rather, I contend that denial of equal protection is, as the Court first alluded to in its famous footnote in United States v. Carolene Products Co., a special case, (95) fraught more than any other with the danger of majoritarian tyranny. (96)

   If the Court is underenforcing a constitutional mandate such as equal protection (ostensibly for separation-of-powers and institutional competency reasons (97)), and Congress has already taken a position the President deems unconstitutional, then the President must take a less deferential stance than the posture he usually assumes. The Court's three-tiered review system should further inform his inquiry, but not constrain it. (98) The President has an enhanced responsibility to (1) ensure protection of the underenforced right, and (2) alert the Court through nondefense that he believes that conditions warrant a stricter standard of review. The first proposition is an extension, based on the Take Care Clause, of the Carolene Products principle: in a representative democracy, minorities risk unfair--and oftentimes unconstitutional--deprivation of rights enjoyed by the majority. And the second relies, to an extent, on the President's special institutional competence in his ability to litigate and influence the Court, as well as to assuage the Court's structural concerns regarding deference to the other branches.

   In an equal protection underenforcement situation, the President is not using his powers for self-aggrandizement: rather than seeking to usurp interpretive authority from the Court, the President is asking the Court to check the political branches more vigorously. Nor is he seeking to usurp Congress's authority: the very question is not simply whether the Court would agree with the Executive, but whether Congress itself deserves deference, and if not, whether the Executive can (and should) help induce the Court to apply heightened scrutiny. This series of questions further helps to constrain nondefense decisions to higher-stakes contexts and thereby maintain the balance of power among the branches of government.

   1. The President's Enhanced Responsibility to Ensure the Protection of Underenforced Rights

      The President has an enhanced responsibility to ensure protection of underenforced constitutional rights and mandates. (99) I begin with Larry Sager's contention that the history of civil rights in the United States empirically demonstrates that the Court--and, perhaps, the entirety of the federal government--sometimes underenforces important rights later recognized under the Constitution. (100) I then assert that when the Court fails to enforce constitutional rights, the logical conclusion is that the onus falls on the President to do so.

      1. The Court's Underenforcement of the Constitution

         While the Court has not recognized a Carolene Products role for the President, it has recognized that the political branches are tasked with ensuring the vitality of a number of (potentially) otherwise underenforced constitutional rights. What is less clear is whether the Constitution substantively extends these rights--arguably it does not--or whether the Court simply recognizes that, because of the separation of powers, it is not the appropriate institution to flesh out those guarantees. (101) Either way, though, this recognition lends support to the notion that the President likewise has a responsibility to ensure constitutional execution of the laws.

         Because the Court's recognition of the role of Congress and the Executive comes in the form of deference--and thus the risk of its own underenforcement where the political branches fail to act--this tension between democratic lawmaking and majoritarian tyranny inheres in our democracy. (102) Yet, as the following discussion of procedural due process and equal protection cases will show, the Court has continually reexamined where it draws the line between aspirational constitutional rights, the extension of which it entrusts to the political branches, and judicially enforceable constitutional rights, which individual plaintiffs can seek to vindicate. This constant boundary-line redrawing renders the territories on either side "up for grabs," and suggests that the President might declare some zones more properly within the judicial domain as the meaning of equal protection shifts.

         The Court has explicitly recognized, in the deference it has shown to Congress and state legislatures in procedural due process cases in the administrative law context, and in equal protection cases concerning welfare and poverty, that when its standard of review is rational basis, the responsibility for protecting certain classes of individuals falls on the elected branches. (103) The responsibility of the elected branches to act is the corollary of the Court's underenforcement; it is the result of the Court's explicit deference to Congress and state legislatures under rational basis scrutiny.

         In 1970, in Goldberg v. Kelly, the Court determined that New York welfare recipients had procedural due process rights to a hearing before losing their benefits. (104) That same year, though, in Dandridge v. Williams, the Court held that a Maryland regulation setting a maximum cap on welfare eligibility did not violate the Equal Protection Clause under the rational basis standard, because the state had a legitimate interest in "provid[ing] an incentive to seek gainful employment" by setting "a limit on the recipient's grant." (105) The Court analyzed the regulation under the rational basis standard, despite its observation that "[t]he administration of public welfare assistance ... involves the most basic economic needs of impoverished human beings." (106) The decision of state officials deserved great deference-it was not to be "second-guess[ed]." (107)

         Yet by 1976, the Court had cut back on Goldberg's protections by holding, in Mathews v. Eldridge, that a disability-entitlement plaintiff had no procedural due process rights to a predeprivation hearing. (108) The Court explained that, "[i]n assessing what process is due in this case, substantial weight must be given to the good-faith judgments of the individuals charged by Congress with the administration of social welfare programs that the procedures they have provided assure fair consideration of the entitlement claims of individuals." (109) That same year, in Washington v. Davis, the Court held that the Equal Protection Clause could not support claims of disproportionate impact based on race. (110) And in 1985, in Cleveland Board of Education v. Loudermill, the Court retrenched yet again by further reducing the amount of process required before a government employer may discharge an employee with a property right in continued employment. (111) While similar analogues exist, for example, in the Court's (and lower courts') shifting willingness to imply a Bivens cause of action (112) and in the First...