Article

Inferred Classifications

This Article discusses a fundamental problem in constitutional law, namely that equal protection doctrine commands strict scrutiny of racial classifications but does not specify what constitutes a racial classification. Many public institutions and legal scholars have assumed that a racial classification must be explicit in order to receive strict scrutiny. This assumption, however, is false. The Article proposes the concept of “inferred classifications” to describe instances in which the Supreme Court has inferred racial classifications from the form and practical effect of facially neutral legislation. The assumption that racial classifications must be explicit is driven by a familiar but flawed approach to equal protection doctrine that seeks to preserve a rigid distinction between racial classifications, which receive strict scrutiny, and facially neutral measures, which generally receive deferential review unless motivated by a discriminatory purpose. The Article demonstrates that the inference of racial classifications has permitted the Court to apply strict scrutiny to formally race neutral legislation without identifying a discriminatory purpose.

The Article’s constitutional analysis has important implications for race neutral alternatives to race-based affirmative action, sometimes called “race neutral affirmative action.” Most scholars have assumed that discriminatory purpose doctrine will determine the constitutionality of race neutral affirmative action, concluding either that all race conscious measures deserve strict scrutiny or that facially neutral measures are excused from strict scrutiny absent proof of an illicit governmental purpose. These scholars have not considered how the form of a race neutral affirmative action measure may persuade the Court to apply strict scrutiny absent a finding of discriminatory purpose. The Article demonstrates that the Supreme Court has applied strict scrutiny to facially neutral measures, without finding a discriminatory purpose, when it perceived those measures to threaten the same constitutional equality values ordinarily enforced through the application of strict scrutiny to explicit racial classifications. The Article illustrates some practical consequences of the inferred classification framework by applying it to specific examples of race neutral affirmative action, such as university admission “percentage plans” and public school assignment plans based on socioeconomic factors.

The Imbecilic Executive

The President seems tailor-made for emergencies.  He alone is capable of responding to a crisis with the necessary energy, decision, and force, all the while accountable to Congress and the people.  The Constitution not only obliges him to take a solemn oath to preserve, protect, and defend it, it grants him a crucial role in thwarting rebellions and invasions.   Little wonder that on some accounts, the Founders ceded the President a broad emergency power, either via the grant of executive power or the Commander in Chief Clause.  Surprisingly few have examined the claim in any detail.  This Article brings to light evidence on the President’s role in emergencies, concluding that the original Constitution rendered the Presidency constitutionally imbecilic.  At the founding, the President lacked constitutional authority to seize property, suspend habeas corpus, or impose martial law, whatever the circumstances.   We know this because the Presidency’s immediate predecessors also had grants of executive power and commander in chief authority.  Nonetheless, they were decidedly feckless in crises, at least as a matter of their constitutional authority.  The only time they could seize property, detain indefinitely, or try civilians before military courts was when their legislatures authorized such acts.  Because the Constitution never marked a departure from the previous regime—because it never expressly granted the President such far-reaching crisis powers—it implicitly incorporated the pre-constitutional regime of impotent executives.  Indeed, for decades after ratification, it remained clear to many that the Constitution never granted the President authority to seize property, suspend habeas corpus, or try civilians before military courts.  Gradually, this imbecilic theory of Article II yielded to more robust conceptions of presidential power, with President Abraham Lincoln pressing executive crisis authority to new heights during the Civil War. Lincoln’s example looms over modern discussions of presidential emergency power, making respectable what once was unthinkable.  The imbecilic executive has been supplanted by a muscular crisis executive.

Standing for the Structural Constitution

Who speaks in federal court for the structural principles of the federal Constitution? Under familiar practice—endorsed by the Supreme Court in its 2011 decision Bond v. United States—it is not solely the institutions empowered directly by federalism or the separation of powers but also individual litigants who can raise structural constitutional objections. Such individual standing for the structural constitution is unusual because, in effect, it enables a species of third-party standing elsewhere condemned by the Court.  This Article analyzes individual standing for the structural constitution from both doctrinal and political economy perspectives. Such individual standing, I contend, conflicts with Article III’s larger ambition to exclude from federal court those controversies with excessive externalities. Consideration of structural litigation’s political economy further shows that enlarging the pool of litigants by allowing individual as well as institutions to sue is unlikely to yield closer conformity to the Constitution given interest group dynamics. As an alternative to the current regime, the Article specifies a straitened regime of narrow justiciability that is more harmonious with Article III goals and more likely to secure fidelity to the structural constitution. 

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