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62 S.M.U. L. Rev. 27 (2009)
Constitutional Rules and Institutional Roles: The Fate of the Equal Protection Class of One and What It Means for Congressional Power to Enforce Constitutional Rights

handle is hein.journals/smulr62 and id is 29 raw text is: CONSTITUTIONAL RULES AND
William D. Araiza*
This Article examines the Supreme Court's recent class-of-one equal
protection case, Engquist v. Oregon Department of Agriculture, where the
Court held that the class-of-one equal protection theory did not apply in
the government workplace. The Article concludes that Engquist reflects an
implicit balancing of employees' equal protection rights against the govern-
ment's legitimate interests in a flexible workplace and avoidance of litiga-
tion, with the Court imposing a categorical rule favoring the government's
side of the balance. This Article critiques this categorical balancing. It ar-
gues that such a categorical rule is generally inappropriate where interests
of constitutional stature exist on both sides of the balance.
However, it is the Engquist Court's method that carries with it the most
troubling implications for equal protection and constitutional rights gener-
ally. Engquist disregards the sub-constitutional decision rules that lower
courts developed to apply the constitutional principle the Court announced
when it officially endorsed the class of one theory in 2000. Those rules
were designed to honor both sides of the balance described above, and
drew on trial courts' ability to impose appropriate pleading requirements,
sift carefully through facts, and thus cull meritless claims at early stages of
litigation while allowing potentially meritorious claims to progress.
The Court's disregard of the doctrinal rules developed by the lower
courts hearkens back to its analogous disregard of congressional factfind-
ing supporting legislation enforcing the Fourteenth Amendment. While the
Court's relationship to the lower courts is quite different from its relation-
ship to Congress, the lower courts nevertheless have unique talents useful to
* Professor of Law, Brooklyn Law School. The author wishes to thank Mitchell
Berman, Richard Fallon, Scott Gerber, Allan Ides, David Leonard, Paul Secunda, and
Michael Waterstone for their comments on earlier drafts of this Article, and Jason Kort
and Stephanie Yasuda for their research assistance. Responsibility for any errors remains
solely with the author.

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