The Complexities of a “Motive” Analysis in Challenging President Trump’s Executive Order Regarding Entry to the United States

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Posted in: Civil Rights

One of the vexing legal questions raised by President Trump’s original and revised executive orders concerning entry into the United States by nationals of several Middle Eastern and African countries is whether and how courts ought to take into account the subjective motives behind the executive order, whether or not these motives are reflected in the text of the orders themselves. Many people think of the executive orders as “Muslim bans”—even though there is no mention of Muslim peoples in the orders themselves—because they credit rhetoric prior to the executive orders that may tend to suggest anti-Muslim sentiment has been on the president’s mind as he has crafted these entry limitations. (For these purposes critics are asserting that a desire to exclude persons from one religious group would be impermissible, although in the immigration setting that proposition might be a contested question.)

Permissible (and Impermissible) Uses of Motive to Strike Down Laws

Consideration of direct evidence of impermissible subjective motive has been a confused area of constitutional law. Courts have often expressed—as the Supreme Court did in United States v. O’Brien, the case involving a famously unsuccessful free speech challenge to a federal law prohibiting destruction of draft cards—a reluctance to use extrinsic proof of invidious motive to strike down laws that would otherwise pass constitutional muster. Courts have offered a variety of reasons for their wariness to look into motive. One is that courts would be in the position of accusing co-equal branches of pretext and dishonesty (or at the very least unawareness of their own true motivation), and that can create friction between the branches. (Think of how courts have reacted to President Trump’s allegations of judicial dishonesty.) Another is the idea that a president or legislature whose action is struck down because of a bad motive can simply reenact the policy for a good motive, in which case courts will have to uphold the new enactment, raising the question why it was worth the hassle to invalidate the action in the first place. (One rejoinder to that is that courts won’t always be convinced that the second enactment is taint-free, and may not uphold it. Another is that if the second enactment is adopted for pure rather than invidious reasons, it is a qualitatively different enactment insofar as motive, and the way the polity understands it, is an essential part of a law: Justice Holmes once reminded that even a dog knows the difference between being kicked and being tripped over.)

Yet another reason proffered for refraining from motive analysis is that the motive of many legislative bodies is hard to discern—in Congress, there may be hundreds of motives of hundreds of legislators in enacting a particular law. For these and other reasons, even when some justices want to look at subjective evidence of motivation (as with Justice Kennedy’s opinion in the Florida case involving an anti-animal-sacrifice law that was struck down for violating free exercise of religion principles), other justices decline to join them in doing so.

Notwithstanding these concerns, however, courts have been willing to accept direct proof of impermissible motive in certain doctrinal areas. Perhaps the most prominent is the equal protection norm of the Fourteenth and Fifth Amendments. When a facially neutral law that draws no problematic classifications between groups can be shown to have a disparate impact against certain classes, and when there is strong enough evidence that a desire to harm those groups was a driving factor behind the law’s enactment, courts have been willing to strike those laws down. The evidentiary threshold a challenger must satisfy is high, but at least the courts are open to the evidence if a strong case is made.

A second (and perhaps similarly equality-driven) area of jurisprudence where the Court has made use of subjective evidence of improper motive is the Establishment Clause of the First Amendment. Unlike in the Free Exercise Clause setting mentioned above, the Court in several Establishment Clause rulings has explicitly required that government’s motive be either secular, or at the very least not a desire to favor some sects over others. In Wallace v. Jaffree, the Court struck down an Alabama law mandating a moment of silence at the beginning of public school classes because the Court concluded, based in significant measure on historical evidence and legislative history, that the law was a backdoor attempt to reintroduce prayer in the schools. And in McCreary County v ACLU of Kentucky, the Court invalidated the placement of a Ten Commandments display on public property, again in part based on a conclusion of improper motives of religious favoritism. These are the cases (again, assuming they apply in the immigration setting) on which challengers to President Trump’s executive orders have been relying.

In short, courts appear to weave their way through many complex factors in evaluating claims based on invidious or impermissible motives. Even in equal protection cases, where the Court has remained nominally open to claims of invidious motivation, the size of the decision-making body may be critical to whether a case can be made. As the Court explained in Hunter v. Underwood, “the difficulties in determining the actual motivations” of a governing institutional body increase substantially when a claim is brought against the U.S. Congress as opposed to a county board of commissioners.

Thus, the nature of the constitutional claim, the size of the decision-making body, and the persuasiveness of the extrinsic evidence of impermissible motive will all be considered, with different factors controlling the Court’s analysis in various cases. In Hunter, for instance, the Court struck down on equal protection grounds a provision of the 1901 Alabama Constitution denying the right to vote to any person convicted of a crime involving moral turpitude, because the Court found that the all-white state constitutional convention that adopted the provision did so with the intent of disenfranchising black residents in particular. The large size of the convention did not insulate it from an equal protection challenge given the strength of the historical evidence establishing the invidious motivation of the convention participants.

On the other hand, the size of the decision-making body may have been critical in some free speech cases. As noted, the Court in O’Brien downplayed the idea that an act of Congress could be struck down because of the intent of some legislators to enact it for the purpose of suppressing protected speech. Yet in cases involving much smaller decision-making bodies, such as Mt. Healthy City School District v. Doyle, the Court recognized that a teacher could assert a valid free speech claim challenging the school board’s decision not to rehire him if the teacher could show the board was punishing him for protected speech in which he had engaged.

President Trump’s Executive Orders Restricting Immigration

Viewed against this complicated and somewhat indeterminate background, several factors could be relevant to the challenges to President Trump’s revised executive order that are based on an alleged intent to further a constitutionally impermissible purpose—religious discrimination against a particular faith community. To begin with, the authority to issue an executive order rests with one person alone, the President of the United States. Thus, struggling to determine the intent of a large body is not a problem here.

Further, the challenge to the order is based on the Establishment Clause, an area of law in which there is significant precedent accepting direct inquiry into government motive as the basis for evaluating and invalidating state action. Indeed, this dimension of the Establishment Clause, the prohibition against discrimination against minority faiths, overlaps and resonates with equal protection doctrine. As we have explained, there is probably no area of constitutional law in which direct inquiry into motive has been more accepted than equal protection jurisprudence adjudicating claims against invidious discrimination.

Finally, it should be clear that attempts to structure a law to mask improper intent do not always insulate impermissibly motivated state action from constitutional review. In Hunter, historians documented how the Alabama constitutional convention had an anti-black agenda on their minds, even though the disenfranchisement provision in question was written more broadly and more neutrally. Thus, the fact that the president might have drafted the new order to scrupulously avoid reference to religious discrimination, while relevant, is not necessarily dispositive.

Other Factors at Play

There are, however, several open legal questions that may very well support a court’s decision to uphold the President’s order. One large question, noted above, is whether domestic Establishment Clause norms apply with full force in the immigration setting. In Kleindienst v. Mandel, the Court wrote: “We hold that when the Executive exercises [the power to exclude an alien] on the basis of a facially legitimate and bona fide reason, the courts will n[ot] look behind the exercise of that discretion . . . .” Ultimately, succeeding with an Establishment Clause claim with require grappling with this high level of judicial deference.

Another issue is whether statements made during a campaign by a candidate for office should be considered reliable evidence as to the official’s intent after he is elected and adopts policies. Statements made during the heat of a campaign are arguably different than statements made during official deliberations by elected representatives. There is certainly a plausible argument that what is said during a campaign stays in the campaign and does not carry over as an indication of intent after an official is elected.

While this contention has considerable force, there is an argument on the other side. Much of what an elected official says has a dual audience; the government actors he is trying to influence to secure adoption of a regulation and the constituency who elected him whose support will be necessary if he is to stay in office. Elected officials are always at least in part in campaign mode. It might be difficult to state a clear rule about what evidence of invidious intent will be inadmissible campaign rhetoric and what may be considered to be probative in the adjudication of constitutional claims. This is particularly the case when one recognizes that one candidate campaigning for office is often an incumbent whose campaign and “official” statements are inherently intertwined.

Two other related issues may be even more difficult to resolve. As noted earlier, one argument against invalidating a regulation based on direct inquiry into legislative motive is that the same law in most cases could have been adopted for legitimate reasons too. The adjudication of the president’s executive order presents a stark example of this problem. What evidence must be presented by the government to convince a court that, even if President Trump did or does harbor some anti-Muslim sentiment, the same order would have been issued even in the absence of such intent? If any established impermissible intent ended up not being a “but for” cause of the executive order, then it should not be a basis of invalidation. But the government may have to present a fair amount of evidence of objective reasonableness to rebut the influence of invidious motives—if the courts recognize and care about such motive claims in this setting.

Finally, if an impermissible motive was a driving force behind the initial order, has it dissipated such that the revised order should be free from its taint? Time would obviously be one factor to take into account in answering such a question. But how much time? And what other factors? Changes in the contours of the policy that seek to make it more neutral? A formal acknowledgement by the president that he shouldn’t take into account religious favoritism? The fact that the regulation was evaluated and supported by government officials and agencies other than those who initially endorsed it for impermissible reasons? These are complex questions that appellate courts may have to address in this setting if, and this is a significant if, they allow a motive-based Establishment Clause challenge to immigration orders to go forward.

  • John Sosa

    I read a long time ago that: “Congress can not make a law to hurt you.” The Legislators (lawmakers) can not make a law to put you in a disadvantage (prejudicial). From day one the president’s motive was and is obvious. He and his basket of deplorables composed an Executive Order without considering nor respecting the Con- stitution of the United States… putting people in danger, specifically Americans aboard… and now, he’s putting band-aids on his “so-call” executive order as it goes through the Courts.

    • CH

      Your response alone shows your bias. The President chose states Obama had already stated were dangerous. Many of those previous had the disease infestation EBOLA. The Presidents order should be upheld and more states adopted. These countries have no veting or checking of passengers as they are poor and dont have proper procedures. All airlines should be checking. No one complains that we wait two hours in line to four hours now and do not carry liquids, now give up our cosmetics, put in plastic bags, and take off our shoes, and sweaters walking through metal detectors, showing our liscences, and visas, which prove we are from America entering mexico, and returning. So why do you care if they check the people, to make sure they are not ISIS, or other violent criminials? Only criminials and those that themselves want to disobey laws, continually fight to have the laws be disobeyed, and not followed. Like Obama allowing illegals to break the law, remember as Trey Goudy stated, you cant pick and choose every law you like, and not follow ones you like, it breaks down the law, and later you will want a law you like followed.
      If you continue this lawlessness, i then also want release from the laws, like paying taxes, driving safe speeds, I like going fast to get to more places and do more things in a day. As time is money. I dont want to pay the high interest rates on credit cards, can we just go into stores and take things? can I take things from your house? these are laws, some people dont like them or follow them, and stores give us this as reason prices are high. We can pick some other laws against you and do them if you like, what will it take, for you liberals who are taking liberal to the meaning of unlawful, easy going, do whatever you like,
      Will it take you to get a bullet in your arm? your loved one killed? your house burned down? your job lost to refugee? your house given to a refugee without choice like in Sweden?
      Start thinking, and think and get some education before you make judgments on these people.
      Obviously the schools have dumbed us all down. With my IQ, I should be very successful, but I attended California liberal schools also dumbing us down . They took out the books in the 1990’s believing they were not telling the accurate history to the kids,(mostly racially motivated) now they dont know the history at high school grad level. My kids learned with flyers and copies the teachers made themselves as booklets, and their schools were rated high. Eventually going to private schools.

  • Spencer Earl

    So a federal judge now has the power to determine foreign policy and national security policy issues without being “read in” to national security threats? Most cases cite state governmental units and the case that disallows campaign statements ie rhetoric is not mentioned. The argument also overlooks the facts that the citizens of these countries, now six of some 44 Muslims countries, involved have no constitutional rights in the USA – unless they have visas etc – and even that has limitations. There are and should be limitations on the federal court’s powers to adjudicate certain matters. That is also something this article fails to address.

  • qwester32

    Amar and Brownstein impute to President Trump the very bias they pretend to seek in his executive orders. Although less pernicious than John Sosa’s blatant comment and with more accurate spelling theirs is still an acrimonious anti-Trump screed even in its short dimensions, intellectual, mensural, or factual. They apparently ascribe no value to the Presidents duty to defend the nation from harm, a duty that completely absorbs and dissolves into irrelevance any religious bias that might infect his governance for such defects exist nowhere else in his sixty year business and human record on earth. That on two separate instances this demeaning example of political dastardry fouls the man’s history indicates the damage Trump has done to the Left, the Progressive, the Democrat, and to the Tyrants opposing the People of the U.S. and to what facile ends they can induce retaliations from the academe.