Wednesday, December 09, 2015

On Spiro on Trump in the NYT: No, it's unconstitutional

Richard Primus

In The New York Times yesterday, Peter Spiro suggested that Donald Trump’s proposal to bar Muslim immigration, though morally reprehensible, would likely be valid as a matter of prevailing judicial doctrine.  I read Spiro as trying to make some subtle points about the gap between judicial doctrine and constitutional meaning and also, in the end, as trying to push the law of immigration in a less racially discriminatory direction, so to a considerable extent I have sympathy for his project.  But his suggestion that Trump’s proposal is consistent with current judicial doctrine strikes me as wrong, and it’s important to say so. 

Spiro is correct that the courts give Congress and the President far more latitude in the context of immigration than they do elsewhere.  So there would be plenty of room for a lawyer defending Trump’s proposal to argue that the First and Fifth Amendment protections against religious and other discrimination that would apply in most domestic contexts would not apply, or would apply with diminished force, in the context of immigration. 

But regardless of how that part of the argument might be resolved, a flat ban on Muslim immigration would be unconstitutional under existing judicial doctrine, because it would flunk the basic doctrinal rule that every governmental action must have a legitimate purpose. 

Sure, such a law would be defended by the lawyer representing Trump’s administration as having a valid purpose—presumably, the purpose of protecting national security.  But just because a lawyer claims that a law is motivated by a certain purpose doesn’t mean that the Court will accept the claim, even in areas where the Court gives Congress and the President a lot of deference.  An outrageous claim can still be rejected as implausible. 

The standard method for assessing whether a law is plausibly motivated by the purpose that its defenders claim for it is to measure the fit between the ostensible end and the chosen means.  In this case, the fit between the law and the claimed purpose is crazily bad.  It is not rational national security polity to ban all entry into the country by any member of a billion-plus member group whose members have every possible racial, national, and political background (and a welter of different ideas about religion, too).  I’m no national-security expert, but I have no trouble making that judgment.  Neither, I suspect, would a panel of federal judges.  The real motivation for such a broad ban on Muslim entry into the United States could only be animus-based, or theological, or some combination of the two.  Under existing judicial doctrine, those are not constitutionally valid motivations.

One might say that the point I am making should have doomed the Japanese exclusion upheld in Korematsu, such that the fact that the Court ruled for the government in Korematsu shows the limits of relying on the rule requiring the government to act only for valid purposes.  But even leaving aside the fact that permissible-purpose doctrine is formally different in 2015 from what it was in 1944, that argument imagines that attitudes among federal judges toward Muslims in 2015 are relevantly similar to the attitudes among federal judges toward persons of Japanese descent that prevailed in 1944, and that’s not a tenable assumption.  Of course a judiciary with virulent prejudices against Muslims could cite Korematsu and various other cases and produce an opinion that would uphold a Trump-style ban on Muslim entry.  But a court with sufficiently powerful prejudices can do lots of things that shouldn’t be characterized as the present state of doctrine, especially if the relevantly necessary prejudices aren’t actually the judicial prejudices of the day.  And one need not be naïve about the state of current judicial prejudices to think that there’s a world of difference between the way that mainstream elite Americans think about Muslims today and the way that their predecessors thought about persons of Japanese descent seventy-plus years ago.  (Imagining that the two cases are similar probably requires vastly underestimating the anti-Japanese prejudice of the past.)

Here’s a final point arising from that last one.  My confidence that judges would deem a flat ban on Muslim entry into the country to be unconstitutional is partly rooted in an understanding of how courts, at this point in history, apply the doctrines under which animus and theology are not valid bases for government action.  And in the world where I’m confident that the federal judiciary would recognize a flat ban on Muslim entry into the United States as having an invalid motivation, I’m also confident that Congress would not enact such a ban.  In the alternative universe where Congress would enact such a ban, it’s harder to say what the courts would do with it.  But I don’t get very far, in assessing what present doctrine permits, by hypothesizing a counterfactual judiciary and asking what it might do.  Or rather, I could get very far indeed, in any direction, which makes the inquiry a bit devoid of practical payoff, except as an illustration of the dependence of law upon the intuitions of the decisionmakers. 

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