After the Court’s decision in Trump v. Hawaii, it is clear that the scope of the Establishment Clause is different when challenging executive exercise of foreign affairs powers, particularly executive decisions regarding admission into the United States. Although the Court’s Establishment Clause jurisprudence is riddled with competing tests and theories, all would agree that the federal government can neither establish a religion nor discriminate against religion. Moreover, unconstitutional discrimination may be proven even in the context of a facially neutral law. Not so after the Trump decision. Now, Establishment Clause challenges to executive assertions of foreign affairs power face extremely deferential judicial review—review that examines only the face of the government’s conduct and asks whether the government has provided a “facially legitimate and bona fide” reason for the action. It’s true that the Court, at the government’s behest, went “beyond the facial neutrality of the [President’s] order” to look for evidence of discriminatory purpose. But the Court merely assumed it had the power to do so, which means it is not at all clear that the Court will follow the same path in the future. Even if it does follow this path, however, the Court’s effort in Trump to examine purpose was weak, deferring substantially to the government’s stated purpose. The bottom line is that the Establishment Clause is not nearly as robust in the context of executive decisions regarding admission to our nation.
But something else happened in the Trump decision. To support its Establishment Clause analysis, the Court relied on core equal protection precedent and, in the process, seems to have announced a new equal protection rule regarding when the presence of government animus will invalidate government action. The Court said that rational basis review requires it to “uphold [a] policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.” This statement addresses the question of how to treat legitimate (nondiscriminatory) justifications for a law when the government is alleged to have also been motivated by animus—a question that until now has not been explicitly addressed or clearly resolved. In the face of demonstrated animus, should the nondiscriminatory purposes be automatically disregarded or disbelieved? Should they be analyzed with deference? Or should they be analyzed more robustly?
Both Department of Agriculture v. Moreno and Cleburne v. Cleburne Living Center, Inc. involve, but do not expressly discuss or resolve, these questions. In both cases the Court found the presence of government animus and ultimately invalidated the offending laws. But in each case the Court also considered nondiscriminatory purposes offered by the government. In Moreno, the Court conducted what seemed to be a traditional deferential analysis of the government’s nondiscriminatory purposes, yet nevertheless found the law irrational as to those purposes. In Cleburne, the Court took a different approach. As Dean Erwin Chemerinsky teaches in his treatise, it conducted a much more rigorous review of the government’s nondiscriminatory purposes under the name of rational basis review. Ultimately, it struck down the law as both irrational and based solely on animus. In neither case did the Court specifically address how the nondiscriminatory justification ought to be analyzed when animus is present or when it would be sufficient to outweigh demonstrated animus.
It seems we now have our answer: a stated nondiscriminatory justification will outweigh demonstrated animus provided the means are “plausibly related” to that justification. In other words, if there’s any reason to believe the government’s stated nondiscriminatory purpose, that purpose governs. Why, you ask, is this a big deal? It’s a big deal because the question is important, was unanswered, and deserves sustained consideration in a true equal protection case. Moreover, there is a strong argument that the Equal Protection Clause requires Cleburne’s more aggressive approach—closer judicial scrutiny in the face of demonstrated animus. Adopting an extremely deferential, thumb-on-the-scale approach without any explication does a disservice to the integrity of the doctrine. Perhaps this is much ado about nothing, and the Court will limit its application to the executive power context. But for now, according to Trump, demonstrated animus appears to be irrelevant as long as there exists an independent nondiscriminatory purpose.
In the Court’s view, animus has doomed government conduct only when that conduct “lack(s) any purpose other than a ‘bare … desire to harm a politically unpopular group.’” It should go without saying that if the government’s only purpose is to discriminate, the law will fail even rational basis review. Is that truly the outer limit of the protection provided by a clause specifically designed to target government discrimination?