The Equal Protection Clause generally forbids the government from making distinctions based on race or other suspect classifications, like religion. But, of course, discrimination still happens, and equal protection violations ensue. A particular type of equal protection violation occurs when laws are enforced in a discriminatory manner — that’s called selective enforcement. If a citizen believes she’s been the victim of selective enforcement, she can mount a defense to the discriminatory prosecution or sue the government in a civil action. But those are post hoc remedies. And they are rarely successful.
This Note discusses a different way that the Supreme Court has dealt with potential selective enforcement violations. In some instances, executive officials have been vested with standardless and unbridled discretion. When the Supreme Court has seen that, it’s gotten worried. It has feared that executive officials, armed with unlimited discretion, could enforce the law in an invidious manner, targeting protected groups and people they didn’t like.
So, in those instances, the Court has stepped in prophylactically. It has jumped in to stop potential equal protection violations in their tracks. When the Court has done this, it engages in what this Note calls “Equal Protection Prophylaxis.”
To be sure, when the Court has acted in this manner, it hasn’t explicitly invoked the Equal Protection Clause. Instead, it has couched its rulings in whatever constitutional provision was at issue, like the First or Fourth Amendments. But even if the clause itself wasn’t mentioned by name, its values and spirit lurked in the background.
This Note doesn’t address whether Equal Protection Prophylaxis is good or bad. Nor does it assess whether it’s consistent with the original meaning of the Constitution. Instead, this Note puts a finger on the practice, and aims to tease out exactly how, why, and when the Court engages in it. Part I provides an overview of the standard ways individuals can challenge selective enforcement and prosecution. Part II discusses Equal Protection Prophylaxis in the First Amendment context. Part III does the same for the Fourth Amendment. Part IV takes a look at the Fourteenth Amendment’s Due Process Clause. Together, these Parts evince just how much the Court fears potential equal protection violations. They reveal that the Court is actually relatively comfortable with regimes that permit officials to burden the individual liberties of a bunch of citizens at once — so long as those regimes are void of discretion. But the Court won’t stand for the mere possibility that one person could be invidiously targeted under regimes of unbridled discretion. In other words, the Court believes it’s better that everyone’s individual liberties be burdened than that the liberties of one individual be potentially burdened on account of a potentially discriminatory use of discretion.
Part V addresses prosecutorial discretion, which the Court has largely condoned despite the perception that it’s unbridled. Comparing prosecutorial discretion to discretion in other contexts will help us better understand when exactly the Court enlists Equal Protection Prophylaxis. That’s because a discussion of prosecutorial discretion makes clear that the Court is comfortable with discretion when some standard or limit is imposed on it — even if that limit is rather small. It’s only skeptical of discretion that is truly standardless or unbounded. That’s likely because when some standard is imposed on unbridled discretion, courts are able to engage in post hoc judicial review.
In those instances, the government has to provide courts with nondiscriminatory reasons for how it met a particular standard. At the very least, this process of judicial review ensures that government officials have some nondiscriminatory basis for their action — a basis that a reviewing court can assess and interrogate. True, officials might give pretextual rationales to hide their true discriminatory intent, but if there is an objective, nondiscriminatory reason for the action, the Court is comfortable handling those allegations of discriminatory enforcement post hoc. But when there’s no standard at all, the Court has little option but to resort to a prophylactic approach.
All in all, this Note puts a name to one weapon the Court keeps in its equal protection arsenal. Understanding why and how Equal Protection Prophylaxis is deployed not only helps us appreciate just how much the Court fears potential unequal enforcement but also clarifies when executive discretion becomes too much.
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