Pandemic Politics, Equal Protection, and Equal State Sovereignty

by Michael C. Dorf

Earlier this week the Washington Post reported that the Trump administration appears to be favoring Republican-led states--especially Florida, which is critical to Trump's re-election strategy--over Democratic-led ones in the distribution of desperately needed respirators, personal protective equipment, and other medical supplies, rather than distributing in accordance with population or need. The report is not definitive, as the administration has not officially announced criteria for distribution. Moreover, although Florida trails New York in total cases, its large retiree population makes its need critical, so it is possible to imagine a fair rationing scheme that allocated at least some extra supplies to Florida (or some other states). And with some federal stockpiles nearly depleted anyway, it might not make much difference.

All that said, however, the story, if true, is extremely disturbing. Although I don't see a successful case going to court, the putative policy nonetheless raises three sorts of constitutional issues, involving: free speech; equal protection; and the much-maligned principle of "equal sovereignty of the states." In a December 2017 Verdict column, I considered more or less the same objections to the elimination of deductibility of state and local taxes (SALT), which overwhelmingly burdened blue states. Although the stakes now are higher, the core issue is more or less the same. In the 2017 column, I pretty much assumed that it would be unconstitutional for the federal government to disadvantage a state as punishment for its politics, arguing that the real sticking point would be proving intent. I continue to think that proof would be difficult, but in today's column I also want to question my underlying assumption that there would be a constitutional violation even if political intent were clearly proven. I'll consider each of the potential claims in turn.
(1)  Free Speech. Suppose the federal government allocated resources -- including medical care -- to people who voted Republican but not Democratic or vice-versa. Surely that would be a violation of the First Amendment right to political expression and political association. But punishing states for their net political lean presents a much less clear-cut case. Again, this is not simply a matter of the difficulty of proving intent. In our politico-legal system, party affiliation plays a very important role in coordinating state and federal policy. As Larry Kramer explained in a 2000 article in the Columbia Law Review, the continuity between state and national parties provides opportunities for states to protect their interests through party politics. It is therefore inevitable that states led by the same party as the national government will be advantaged. And that is a direct consequence of intentional favoritism. This phenomenon is highly problematic, but at this point in our history, it appears to be an indispensable feature of how the system works.

Thus, I reluctantly conclude that while punishing individuals for their political affiliations would indeed be unconstitutional under the First Amendment, punishing whole states is despicable but inevitable and thus likely permissible in most circumstances.

(2) Equal Protection. The Fourteenth Amendment's Equal Protection Clause does not apply to the federal government, but the Supreme Court has long held that the Due Process Clause of the Fifth Amendment more or less requires the federal government to obey the same equal protection strictures as the states must. Somewhat embarrassingly, the first case to articulate this principle, even as the majority effectively disregarded it, was Korematsu v. United States, which likely explains why the standard citation for the doctrine of so-called "reverse-incorporation" of equal protection is not the infamous Korematsu but the celebrated Bolling v. Sharpe, the companion case to Brown v. Board of Education making the latter's anti-apartheid rule applicable to the District of Columbia.

For decades, equal protection doctrine has distinguished among those classifications (like race and national origin) for which a very strong justification is required and those (like criminal record or scores on an entrance exam) for which only minimal rationality is required. The tiers of scrutiny approach is in fact much more complicated than that--officially including an "intermediate" level (for sex, at least in some circumstances) as well as "rational basis with teeth" (perhaps for sexual orientation)--and has been criticized by numerous scholars. However, painting with very broad strokes, it remains true that to show a violation of equal protection, one must almost always begin by pointing to the government's use of a "suspect" or "semi-suspect" classification.

Is state residence such a presumptively impermissible classification? The Constitution contains multiple provisions and doctrines that limit the ability of states to discriminate against out-of-staters, including the Privileges and Immunities Clause of Article IV (not to be confused with the Privileges or Immunities Clause of Sec. 1 of the Fourteenth Amendment), the Dormant Commerce Clause, the Citizenship Clause of Sec. 1 of the Fourteenth Amendment, and the unenumerated right to travel. Some of these provisions and doctrines may also inform equal protection doctrine as applied to the states. But as a general matter, the Court has not included state residence on the list of suspect or semi-suspect classifications.

However, where even a non-suspect classification is used to apportion access to a so-called fundamental right, heightened scrutiny does apply. Thus, in Dunn v. Blumstein, the Court applied heightened scrutiny and invalidated a state durational residency requirement for voting (which is a fundamental right for these purposes). To be sure, other cases, especially Saenz v. Roe, invalidate state durational residency requirements even for non-fundamental rights (there welfare benefits), but Saenz certainly doesn't undermine the proposition that burdening a fundamental right triggers heightened scrutiny.

Does allocating scarce federal resources based on the politics of a state burden a fundamental right? Freedom of speech is a fundamental right, so maybe yes. Yet if that's the basis for applying heightened scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, we haven't really added anything to the free speech analysis above. And as we saw, the free speech objection doesn't really work, so neither, it seems, does the equal protection objection.

(3) Equal Sovereignty of the States. That brings me to the principle of "equal sovereignty among the States" that Chief Justice Roberts announced in order to invalidate the coverage formula of the Voting Rights Act in Shelby County v. Holder. In my Verdict column on SALT deductibility, I noted that the equal sovereignty doctrine was more or less invented in Shelby County. I and others have also observed that it is fundamentally unworkable. Congress routinely legislates what are effectively different rules for different states. A law providing subsidies for ethanol may be written neutrally but is in fact a huge boon to Iowa and other corn-growing states. Congressional or Presidential action setting aside a large tract of land as a national park or national forest could be a huge boon to the state in which the land is located if it generates tourist revenue or could harm that state relative to others if it prevents still-more-lucrative development or exploitation, but whether benefit or burden, the necessary particularity of much federal action means that no principle of equal sovereignty among the states could be more than an empty formality; it might prevent Congress or the President from expressly differentiating among states by name, but would not prevent much action that is equivalent in practice.

Still, equal sovereignty is on the books for now. One could imagine the Supreme Court in some future case declaring that it forbids not only express favoritism but intentional favoritism plus disparate impact. Given the difficulty of proof, however, I doubt that the Court will get there and it isn't there yet.

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Accordingly and reluctantly, I conclude that if the Trump administration is rewarding GOP governors in swing states with lifesaving medical supplies while shortchanging blue states for the purpose of enhancing Trump's prospect of re-election, that is despicable, but the only remedies are political. Unfortunately, the very pathologies of our constitutional order that give Trump and even normal politicians incentives to play political games with the allocation of scarce federal resources also limit the efficacy of political responses.