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Thursday, October 12, 2017

Unconstitutional Intent and the Executive

A central focus of the ongoing Travel Ban cases is whether the restrictions they impose are invalid because they were motivated by invidiously discriminatory intent on the part of the President.  Broadly speaking, a government action which is otherwise constitutionally permissible violates Equal Protection principles (whether under the Fourteenth Amendment or the Fifth Amendment's Due Process Clause as construed in Bolling v. Sharpe) if the official who adopts, approves, or takes that action did so based on racial considerations -- which for brevity should be understood as including ethnicity and national origin as well -- or religious considerations.  This Equal Protection principle applies even more forcefully when the government official acts based on stereotypical views about, or animus toward, people of a particular race or religion.  The foundations of this principle trace back to the Supreme Court's post-Civil War Era ruling in Yick Wo v. Hopkins.  (I would like to refer to Yick Wo as a Reconstruction Era case, but it was decided a decade after Reconstruction ended).  The Free Exercise and Establishment Clauses reinforce, complement, and establish Equal Protection-type safeguards prohibiting intentional religion-based discrimination.  This posting considers some of the implications of focusing on the President's personal, subjective intent and motivation to identify such discrimination in determining the constitutionality of official action. 

Courts are accustomed to scrutinizing legislative history to root out unconstitutional intent.  For example, the Supreme Court invalidated a felon disenfranchisement provision in Hunter v. Underwood, 471 U.S. 222 (1985), on the grounds it was enacted with the express purpose of disenfranchising African-Americans, yet upheld the validity of felon disenfranchisement provisions adopted for other, non-racial purposes in Richardson v. Ramirez, 418 U.S. 24 (1974).  More recently, several redistricting schemes and changes in voting laws have been invalidated based on courts' determinations that state legislators acted with racially discriminatory motives.  Courts likewise have frequently been called upon to determine whether police officers or prosecutors acted with discriminatory intent in the context of racial profiling and selective prosecution suits.  Although the nature of the relevant evidence is typically different across these various types of cases, the underlying inquiry remains the same. 

There does not appear to be such a well-established convention or body of precedent concerning the search for unconstitutional intent on the part of the President himself.  President Donald Trump has opened himself up to an unusual degree of such scrutiny as a result of the sheer number of his direct statements to the public (often through Twitter), as well as the phrasing and content of some of his public speeches.  The application of these equal protection principles directly to the President raises numerous important issues that warrant careful consideration.  In asking these questions, I am inquiring about the bounds of judicial review of executive decisions in general, and am not attempting to either assume or contest unconstitutional intent in the Travel Ban case itself. 

First, most basically, does this principle limit the exercise of all presidential powers, or are there powers that are exempt from such Equal Protection scrutiny and relegated to pure, unreviewable executive discretion?  For example, may a litigant challenge the constitutionality of a presidential veto of a law, if the President's public statements and surrounding circumstances suggested the veto was racially or religiously motivated?  Does this mean that a vetoed statute could, on Equal Protection grounds, nevertheless enter into law?  Notice these are two separate issues: whether a litigant could prove a constitutional violation, and what the proper remedy for any such violation would be.  Similar questions arise concerning the pardon power -- if a defendant's pardon were denied, could she seek judicial review if there were a basis for claiming the denial were impermissibly influenced by racial or religious considerations? 

Second, do these Equal Protection principles apply with full force in the context of foreign affairs and national security?  Foreign nations, by definition, are inhabited largely by foreign nationals, and within many nations, there often exists a numerically predominant race or ethnicity.  If courts are willing to scrutinize the President's treatment of different nations (and citizens of different nations) in the context of the Travel Ban, the range of potential applications across American foreign policy is broad.  It's not clear that federal courts should be scrutinizing foreign policy or especially military decisions to decide whether they were influenced by constitutionally impermissible considerations relating to the race or religion of other nations' citizens.  Allowing foreign policy decisions to be challenged on the grounds that they were rooted in animus toward foreign nations or their citizens seems to give foreign nations a perpetual opportunity to challenge and undermine our foreign policy in unpredictable ways.   Moreover, in Reid v. Covert, the Supreme Court held that treaties may not violate constitutional rights; it would seem that a broad ruling in the Travel Ban cases could expand courts' power to review the President's decision to sign or refuse treaties or executive agreements with foreign nations.  The Travel Ban, after all, could have been adopted as part of a reciprocal agreement with allies (i.e., Canada) to expand its reach.

Third, under what circumstances is the President's discriminatory intent sufficient to require invalidation of a federal statute?  The Travel Ban presents a relatively uncomplicated case since the ban originated with the President and he was exclusively responsible for signing it into effect.  The situation is more complicated with legislation.  If Congress enacts a statute without discriminatory intent, but the President either signs the statute or allows it to enter into effect automatically due to unconstitutionally discriminatory motives, is the President's involvement enough to render the statute unconstitutional?  Does the analysis change if the statute originated with the White House rather than Congress (even though Congress still enacted it for wholly valid reasons)?  Serious constitutional questions seem to be implicated if an impermissible intent or motive on the part of the President could nullify otherwise constitutionally valid action that Congress had the power to undertake. 

Fourth, what is the "vertical" extent of the consequences of a President's or Attorney General's unconstitutional intent?  For example, the Justice Department recently decided to expand its war on drugs by directing more resources to drug arrests and prosecutions and directing U.S. Attorneys to take stronger stances on plea bargaining and sentencing, especially mandatory minimums.  If, hypothetically, a court were to decide that a President or Attorney General approved such an action as the result of unconstitutional animus, what would the consequences of such a decision be?  Would any particular defendants be entitled to relief, and how would they be identified?  Would every U.S. Attorney and FBI/DEA agent be subject to interrogation about whether they acted differently than they would have, absent such a policy change?  How much of what the bureaucracy and line officials of the Government do must be deemed tainted or unconstitutional by purportedly impermissible motives or animus by a President or cabinet official? 

Fifth, the procedural implications of basing judicial rulings on a President's subjective motivations appear tremendous.  In cases involving subjective intentions of police officers, local government officials, and even state legislators, courts frequently allow plaintiffs to take discovery to bolster their cases.  When it comes to the President, however, courts seldom if ever would allow Plaintiffs to depose him/her or even provide written interrogatories to be answered by him/her personally.  Of course, that might be seen as simply a limitation on plaintiffs' ability to prove their animus-based challenges.  Even without such discovery, a plaintiff may attempt to raise doubts about a President's subjective intentions or motivations based on public statements, speeches, campaign materials, Tweets, comments by other government officials, and other such sources.  The Government, then, is left in something of a quandary.  The single most important source of information about the President's actual intentions, of course, is the testimony of the President.  If courts claim the power to invalidate executive action based on the President's subjective motivations and intentions, they unavoidably put his/her mental state at the center of every such constitutional challenge.  Adjudicating such cases without direct evidence of that mental state from the President him/herself seems artificial and unsatisfactory, yet putting the President under pressure to provide such evidence is unworkable and raises separation powers concerns.  To the extent the Court allows these types of challenges to executive action to proceed, it should likely require a very high threshold showing by plaintiffs before putting the Government in the position of either having an executive action invalidated or requiring the President to personally provide evidence and likely become subject to discovery.  

Finally, I wonder whether the existence of Executive Privilege and Deliberative Process Privilege suggest that courts should not attempt to pierce the Oval Office to uncover the "true" motivations behind Presidential actions, but rather should defer to the official rationales.  Some FOIA cases concerning deliberative process privilege suggest that all that matters is the official rationale the government decides to officially adopt, but of course they usually do not involve constitutional issues of this nature. 

As a law student well over a decade ago, I would often be dissatisfied when the notes following a case in a casebook were comprised primarily of questions that the book failed to answer (or at least offer substantial guidance about).  As a law professor, I now understand -- and am indulging a bit -- in the temptations of such an approach.  I remain sincerely interested to hear what people on different sides of the issue think about the scope and possible implications of this aspect of the Travel Ban plaintiffs' arguments.   















Posted by Michael T. Morley on October 12, 2017 at 09:33 PM | Permalink


Just to accomplish the dish ( my comment above ) :

The meaning or punch line is very simple : Subjective intent in the common sense of it has nothing to do here , because , even if trump , or one detective as illustrated in my comment , have very hostile feelings and perception of such towards Muslims or blacks , It wouldn't change much , as long as it does cross exams of : Reasonableness , relevancy , efficiency , necessity and more , all , observed or reviewed by courts . A good and efficient detective , wouldn't be fired , just for the sole reason , that he hates blacks , but , the level of restraint and discretion exercised while actively on duty .


Posted by: El roam | Oct 13, 2017 8:10:56 AM

Thanks for that interesting post , the respectable author of the post , claims that :

" The Travel Ban presents a relatively uncomplicated case since the ban originated with the President and he was exclusively responsible for signing it into effect. "

But this is really the contrary . This is because , the concrete issue has to do with national security one , and very tightly attached to it . The courts recognized it clearly . Yet so far dealt with the irreversibility of potential damages deriving from the executive orders , not on fundamental merits ( concerning them , no issue , since September the11th and on ) .

The fundamental issue presented in that post , is not the subjective intent , but relevancy . Discrimination is a fact of life . The issue is whether it is relevant to the issue , or undue and irrelevant .

This is because , the issue is not mere discrimination , but , balancing between competing values . discrimination is wrong , yet , wrong as a general rule . If, one discriminates the other, not on a relevant basis, this is wrong (solely for being: black, Jew, woman, whatsoever) yet:

If discrimination , is relevant and legitimate , due to the issue discussed , then , it is : relevant , and legitimate , and legal .
Take for example , synagogues :

Generally speaking , you can't discriminate women , solely for being as such ( woman ) , yet : if , for religious purposes , one needs to separate women from men during prayers in synagogues , then :

This is relevant for the situation discussed , legitimate , and legal .

A detective , can't target a black , solely for being so , yet :
He may question the witness to an offense : Whether the suspect was black , and if indeed , chase him as such , since , it is relevant to the ongoing investigation .

In the third circuit, there was a very relevant case, where, mass surveillance against Muslims has been made by New York city police department . One may find great interest there , concerning the issue presented in that post , here :



Posted by: El roam | Oct 13, 2017 7:48:22 AM


If a Muslim says that homosexuality is a sin, we believe they are being genuine and honest--they are authentic Muslims.

If a Christian says that homosexuality is a sin, we know they are being dishonest and homophobic--they are inauthentic Christians, Christians in bad faith.

Separation of church and state, and freedom of religion, means that we give Muslims the benefit of the doubt and don't expect them to acknowledge LGBT rights in the Muslim world; but we assume Christians are homophobic unless they prove otherwise. Homosexuality isn't ever mentioned as a sin in the Holy Bible, whereas it is mentioned as a sin in the Koran.

That's how innocent until proven guilty works--it works for the Muslim and against the Christian.

Posted by: Not Constantinople | Oct 13, 2017 1:22:19 AM

Trump (last commentator)--

Korematsu is no more good law than Wickard v. Filburn. Anything before Brown is presumptively non-law/non-canon unless reaffirmed in a post-Brown case.

Also, there were American soldiers in foreign-territory during WWII, there are no longer any such foreign wars being fought right now, so it's a different situation.

Posted by: Gilfred | Oct 13, 2017 12:39:32 AM

Do you think the fact that the Japanese Internment Camp executive order passed strict-scrutiny (under the fourteenth amendment's equal protection clause) provides a basis for not assuming discriminatory intent on the part of the president?

Or was it because Southern Democrats had no history of racism before Brown, like Trump Republicans do today?

Posted by: Trump isn't interning Japanese like FDR | Oct 13, 2017 12:35:09 AM

Under Edwards v. Aguillard (separation of church and state), you can assume illegal intent unless they can prove otherwise--so it would seem that you could also assume illegal disparate-impact intent of gun-laws unless the city could prove otherwise*, just as you can assume discriminatory intent if a business has no blacks working there unless the person can prove they didn't discriminate to create that outcome.

*("it's just a coincidence that a larger percentage of blacks are prosecuted under the law than represented in the general population")

When it comes to discrimination or religious-promotion (or rape), it is the accused who must prove their inoocence, not the state or accuser.

Posted by: assumptions | Oct 13, 2017 12:25:07 AM

Could gun-control laws be unconstitutional if the intent was to incarcerate a larger percentage of blacks under the law than they represent in the general population?

Let's say a handgun ban was passed with the intent that 20% of the people prosecuted under the law would be blacks, even though they only make up 10% of the population.

Would that discriminatory intent invalidate the law, even if it were otherwise within the bounds of the second amendment and the substantive due process clause under Roe and Lawrence?

Posted by: Super Predators v. Undocumented Aliens | Oct 12, 2017 11:58:43 PM

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