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.