Would funding the Sentinel Program violate the equal Protection clause?

Question

For today's exercise into comic book law, let's take a look at another X-men storyline.

As we previously established using the Purifiers as an example, people can talk all they want about wanting to murder other people as long as no imminent lawless action happens. That's the Brandenburg test. However, let's look at what happens if that rhetoric is finding its way into the government and there actually is action. So for our thought experiment of today, let's use Days of Future Past as the basis, which was also the basis for the film version. Let's take the synopsis as following as true as the amalgamation of which facts both stories tell:

• Senator Robert Kelly is assassinated in 1980 (1973 in the film) by a carrier of the X-Gene.
• As a result, Kelly's advocating for funding the Sentinel Program by Bolivar Trask is getting traction.
• The publicly known target of the Sentinel Program is to hunt down and kill X-Gene carriers, especially US Citizens.
• The funding goes through and Trask starts building hunter-killer robots for the government.

For our analysis, let's stop here, as the rest of the plot is time-travel shenanigans. Does the funding count as government action, making the program an action or law that violates the equal protection clause of the 14th amendment?

Answer 1

In the comic timeline (seen in Uncanny X-Men #141, Jan 1981), as mainly narrated by Kitty Pryde,

• In 1984, "a rabidly anti-mutant candidate was elected President", and "within a year" had arranged to pass "the first Mutant Control Act". This is struck down by the Supreme Court as unconstitutional.
• Then (let's say this is 1985-1986ish), "the Administration responded by activating the Sentinels", who promptly proceed to take over the country. Whoops!
• There is a further Mutant Control Act in 1988, which makes mutants "pariahs and outcasts" to be hunted down and for the most part killed. Presumably this is under the Sentinel-controlled version of the U.S. government.
• By 2013, society is split between baseline humans (H), "anomalous" carriers of the mutant gene (A), and full-blown mutants (M). The A-class people are forbidden from reproducing. All this is said to derive from, and be in accordance with, the law of 1988.

While we don't know what the 1985 law did, it's presumably not too different from the 1988 version. The newer one is only constitutional insofar as the Sentinels have taken over. Their orders, made in response to the Supreme Court's action, were to "eliminate the mutant menace once and for all", and deposing the government is their chosen path to that end.

Although the robot coup was not what the President was hoping for, we can still interpret that the intent behind using the Sentinels was to (1) achieve similar effects to the rejected law of 1985, and (2) do so in a way that the Supreme Court could not block. The idea is that the use of the Sentinels probably is just as unconstitutional as the original law, but is something the government could get away with. In the movie, Trask says that Congress refused to fund the program, and so he is appealing to the executive branch for clandestine financing: this is a similar dynamic of trying to evade the lawful process.

It is plausible that the grounds for striking down the 1985 law would include equal protection, as well as protection against search and seizure, and requirements of due process. It would have been a broad enough ruling that the administration felt justified in taking an entirely different approach, rather than attempting to tweak the law. For example, if the Supreme Court held that mutants were not a protected class, and not even human anyway, but that the proposed law infringed the rights of humans in some minor way, then the creation of the Sentinels seems less obvious as a response. They must have concluded something broad enough to cover anti-mutant laws in general. I'd estimate that whether or not mutation was deemed within scope of the equal protection clause of the Fourteenth Amendment, the other obvious civil rights violations are more likely to be biting. Certainly in the case of the giant murderbots, the Fourth and Fifth Amendments are clearly engaged, and the Supreme Court might be more comfortable applying them straightforwardly, compared to reading a novel class into the Fourteenth.

Politically - and the use of Nixon in the film makes this apt - the problem was not to stay within the bounds of the law, but to evade its power. Secretly funding a private-sector program doesn't make the outcome any more or less constitutional, but it does make it harder for plaintiffs to challenge. They have to find out about it. They have to demonstrate standing, which is difficult - see for example U.S. v Richardson 418 U.S. 166 (1974) holding that a taxpayer did not have standing to challenge Congressional funding of the CIA. And if the Sentinels haven't been turned on yet, then nobody has been actually harmed; all we have is a robot that might hurt mutants. Once they are activated, the secret is out, but at that point if all goes "well" then there are no mutants left to object. In the event, a legal challenge was impossible for different reasons (robot tyranny).

Answer 2

Does the funding count as government action, making the program an action or law that violates the equal protection clause of the 14th amendment?

Without really thinking it through in great depth, there might be action that violates the equal protection clause or other constitutional protections. But, the funding alone probably doesn't give anyone standing to challenge the program in court on that ground.

Generally speaking there is no such thing as citizen standing or taxpayer standing for constitutional violations that flow merely from spending money for an unconstitutional end. Other non-spending acts would have to be identified. As noted here:

The United States Supreme Court has held that taxpayer standing is not by itself a sufficient basis for standing against the United States government.

People who are ultimately pursued by the program may have standing to assert that the program improperly discriminates against them or denies them due process. But merely building a robot to do that at some future date doesn't give potential targets of the program a right to sue at that point.

This isn't an individualized injury to them at that point.

Maybe the robots will never be deployed and that threat won't materialize. Maybe the robots will be repurposed to repelling a military invasion of Wisconsin by Canadians bent on conquest of American breweries with military force.

Answer 3

Government funding does make it a government action, however, it's important to note that the law in the story that funded the sentinels could have resulted in unintended consequences for the bad future.

Considering that the Sentinels were capable of detecting mutants at the time and had been since their introduction 16 years prior to the publication of this story. It would make sense that in the wake of an assassination of a U.S. Senator by known mutant criminals, the general public mood turned to favor a screening system that would want better screening and protection against mutants... similar to how the President riding in convertible Motorcades stopped following Kennedy's assassination in real life OR the increase of TSA restrictions on items one can take on airplanes following the 9/11 attacks.

Thus the Sentinels were funded to act only as a security deterrence. At the time of the story, the Sentinels were the only system that could identify Mutants AND carry enough onboard weapons systems to neutralize them. It would have been sold to the public as a security tool. Nothing more than a cop with a gun and a metal detector.

Of course, the Sentinels being an AI, had in prior stories gone off mission from taking their job to an extreme (Their debut story had them turn on non-mutant humans because non-mutants gave birth to mutants and thus were the source of mutants... they were only stopped when Cyclops tricked them by exploiting this logic and explaining that humans weren't the true source of mutation, the sun was, which convinced the entire fleet of Sentinels to try and stop the sun... and went about as well as you would think). This is a consistent fatal flaw, and by the 2013 storyline, it's implied Sentinels had gone off the rails, usurped the U.S. government, and were now working to nuke the world because killing everyone would stop mutation from occurring. Essentially, it was a Skynet scenario where the computer AI was operating on a "Garbage In, Garbage Out" programing, and by the time the people in power could do anything about it, the Sentinels had too much power to be stopped.

At one point in the storyline, future!Kitty walks by a graveyard and narrates that by this point, the Sentinels had targeted the non-mutant heroes of Marvel as well (including Spider-Man, Dare Devil, the Fantastic Four, and a good number of the Avengers (at the time of publishing, none of the heroes could be counted as mutants because Mutants were defined in the Marvel comics as people who were innately born with their powers, whereas all of the heroes were non-mutants who developed their powers due to outside forces they interacted with.).

As such, it's possible the law was compliant with the Constitution (After all, you do have to go through a metal detector when you go to Congress and other government buildings... why not a Mutant detector... you know... just to be sure...).