By Victor C. Romero. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- E-mail: vcr1@psu.edu
- Phone: (814) 865-8989
Abstract:
In Iqbal, the Court reaffirmed the long-standing equal protection doctrine that government actors can only be held liable for discriminatory conduct when they purposefully rely on a forbidden characteristic such as race or gender in promulgating policy; to simply know that minorities and women will be adversely affected by the law does not deny these groups equal protection under the law. This Essay interrogates this doctrine by taking a closer look at Iqbal and Feeney, the thirty-year-old precedent the majority cited as the source of its antidiscrimination standard. Because Feeney has rarely been cited since its issuance in 1979, its reappearance in Iqbal signals the Court’s reluctance to intervene in matters (even tangentially) related to national security even if the government’s allocation of burdens and benefits perpetuates societal racial and gender privileges.
By taking a closer look at the challenged laws in Feeney and Iqbal, by examining the choices made by the lawmakers to press ahead despite their impact upon minority groups, and by imagining alternative arrangements less burdensome upon the minority (or perhaps more burdensome upon the majority), this Essay will explore the limits inherent in deferring to government actors, especially when we know that they are consciously perpetuating privilege. Even in matters that arguably relate to national security and foreign policy, the Court should never shirk its responsibility to closely scrutinize discriminatory governmental policies that were deliberately adopted. For behind Feeney and Iqbal lurks the long shadow of Korematsu, which serves as a constant reminder of the need for vigilance especially in the face of deliberate government action that perpetuates minority subordination.