My article forthcoming in the Loyola Law Review, titled Equal Protection from Eminent Domain. Protecting the Home of Olech’s Class of One heavily relies on the Olech and Engquist line of cases, so this recent article by Professor Shanske posted to SSRN is of some interest (H/T Legal Theory Blog).
This article is about the erosion of the protections offered by the Equal Protection Clause resulting from the Supreme Court’s decision in Engquist v. Oregon Department of Agriculture, 128. S. Ct. 2146 (2008). Lower courts, purportedly following Engquist, have limited the reach of the Equal Protection Clause in several dozen cases in the last year. Until Engquist, it was uncontroversial that any person alleging irrational treatment by a government official could at least challenge the government official to give a reason that would satisfy rational basis review. Since the Supreme Court decided Engquist, lower courts have leapt to find that government officials cannot be found liable under the Equal Protection Clause for any action considered “discretionary.” It would be problematic if this striking curtailment of individual rights was actually required by the Supreme Court’s decision in Engquist, but the Court held no such thing, though the Court offered some expansive dicta that could be so interpreted. This article aims to counter the creep of these dicta among the lower courts and explains in particular why these dicta are not consistent with constitutional values.
I discuss this dicta at length in my article, so I will be sure to incorporate this article prior to publication. For my thoughts on dicta, see here: Much Ado About Dictum; or, How to Evade Precedent Without Really Trying: The Distinction between Holding and Dictum (one of these days I’ll get that article ready for publication).