//  4/25/18  //  Commentary

In all of its iterations, the Trump Administration’s entry ban has been motivated by Islamophobia—the President’s own, or that of constituents to whom he is catering, or both.  Without that bigotry, there would have been no first executive order, and no second executive order, and no current proclamation.  The animus-based motive behind the policy is a fact, sort of like “Madrid is the capital of Spain.”  And as a matter of doctrine, animus-based government action is constitutionally invalid.  But the entry-ban litigation has from the beginning been beset by anxieties about what courts are allowed to admit to knowing, or how they are allowed to reason, about presidential motives for action, especially in national-security and foreign-affairs context.  Put realistically, the central question in Trump v. Hawaii isn’t whether the ban is motivated by animus.  It’s whether the Supreme Court thinks it can come out and say that animus motivated the ban, or whether instead the Court believes that it needs to pretend not to know.

The question of how courts should reason about the President’s discriminatory attitudes has cropped up in both backward-looking and forward-looking forms.  Looking backward, the central issue is whether the President’s pre-inauguration statements expressing anti-Muslim attitudes can count as evidence of the motive behind the entry ban orders.  (There’s plenty of post-inauguration material, too, but for now I’m interested in the earlier stuff.)  Looking forward, several jurists and commentators have expressed the worry that declaring the current ban animus-based would prevent the President from taking necessary actions in the future—say, ordering a militarily warranted airstrike on a majority-Muslim nation—because anything he did that affected Muslims adversely would be similarly coded as animus based.  He’d have been identified as an anti-Muslim bigot, after all.  Which he is.  But even a country with an anti-Muslim bigot for a President might sometimes need to order airstrikes against majority-Muslim countries.

Both issues were discussed at oral argument this morning.  Solicitor General Noel Francisco addressed the first one, and Neal Katyal acting as counsel for Hawaii addressed the second.  Francisco and Katyal are highly skilled appellate advocates, and the answers they gave were, in an important way, remarkably similar.  The answers they gave were also absurd, and in the same way.  According to the lawyers, both questions should be answered with magic-word formalisms—magic word formalisms that can’t possibly be taken seriously as devices for identifying a President’s actual motives for action.

Begin with the Solicitor General.  He argued that nothing Donald Trump said before becoming President should be counted as evidence of an unconstitutional purpose behind his actions as President.  The reason?  Trump had not yet taken the oath of office when he said those nasty things.  When he did take the oath of office, he swore to uphold the Constitution.  So we need to presume that even if he was motivated to act for unconstitutional reasons when he was a candidate, his actions as President had constitutional motives.  He swore to uphold the Constitution, after all.  (In another version, it matters that he acted on the advice of his Cabinet secretaries, who swore to uphold the Constitution.  It comes to the same thing: they swore to uphold the Constitution, so any intentions to act unconstitutionally that might have previously been expressed must have been displaced by constitutionally valid motives.)

This argument is an obvious legal fiction, rather than a serious attempt to explain how to determine what the President’s motive actually was.  And Justice Kennedy appropriately pushed back against this argument pretty hard.  Suppose someone ran for mayor promising to do all sorts of unconstitutional things, Justice Kennedy asked, and he won, and he took the oath of office and swore to uphold the Constitution, and immediately thereafter he did exactly the things he said he was going to do.  Would we really not think that his motives were what he told us his motives were?  There’s just no basis in any reasonable understanding of human behavior to think that a person’s taking the oath of office causes his actual motives to change in that way.  It’s a formal fiction, and everyone should understand it as such. 

On the other side, Chief Justice Roberts asked Katyal whether President Trump could ever escape the taint of his anti-Muslim statements.  The implication, of course, is that it wouldn’t make sense to think that an official who expressed a bigoted view at Time 1 would forever be barred from doing anything that could be interpreted as motivated by that form of bigotry.  Surely such a person might at some future time do something that bore adversely on the once-targeted group but for perfectly legitimate reasons.  (The example of a militarily necessary airstrike on a majority-Muslim country—one that any American President would order under the circumstances, even without being motivated by anti-Muslim animus—is one that the Chief Justice put to Katyal this morning.)  So maybe the Court should avoid saying that the President acted unconstitutionally in the present case, lest the Court do something that would force future courts to block reasonable presidential actions in the years to come. 

Katyal assured the Chief Justice that President wouldn’t forever labor under a constitutional disability preventing him from taking necessary action.  More specifically, Katyal said, the President could put his future actions in the clear right now, today, by publicly disavowing his former anti-Muslim prejudice.  Indeed, if only Trump would say the right thing now, he’d be free tomorrow (as a constitutional matter, anyway) to impose an entry ban just like the one that is now being contested, assuming legitimate reasons could support such a ban.  But this argument too is hard to take seriously.  Suppose Trump is a bigot.  (Actually, no need to suppose.  He is.)  Suppose that next Monday he announces his intention to raise trade barriers against a bunch of Muslim countries, just because they’re Muslim countries.  Then, on Tuesday, he goes on television and reads the nicest possible statement about Islam, and apologies for his formerly benighted thinking.  Maybe he winks at the camera just before and after he reads the statement; maybe he doesn’t.  And then on Wednesday, he imposes the trade barriers.  What sucker would really think that his anti-Muslim attitudes didn’t motivate his action?  Obviously, Katyal’s answer was intended to tell the Court that it can invalidate the current policy without committing itself to invalidating too many other things in the future.  But doing it this way abandons what should be Hawaii’s core contention: that reality matters.

The idea that either set of magic words wipes the slate clean—that the oath of office creates the President’s motives anew, or that a recantation now would do so—is either a remarkably naïve way of thinking or else a willing embrace of fictions.  Given the intelligence of the lawyers who argued this morning, the latter seems more likely.  And the embrace of fictions cannot possibly be a good way to assess a government official’s actual motives.  This isn’t complicated: if your job is to make sure I don’t act for prohibited reasons, you shouldn’t take my word for it when I say that I’m acting for a permitted reason.  More generally, the question of what motivates a person to take some particular action isn’t sensibly answered by asking whether he said some set of magic words.  It’s better answered—fallibly, to be sure, but better—by looking at the whole picture and coming to some common-sense view of why he did what he did.

That means that the right answer to the question of whether the President’s pre-inaugural statements matter in assessing the constitutionality of the entry ban is, straightforwardly, “Yes, to precisely the extent that those statements are probative of his reasons for taking the challenged action.”  The constitutional inquiry is about why the President acted, not about what words he said; his words spoken at any time are neither more nor less than potential evidence of his reasons for acting.  In exactly the same way, the answer to the question of whether the President can do this or that in the future is that he is always entitled to act for constitutionally legitimate reasons, and no court should get in the way unless it believes that a particular action had unconstitutional motives, and no prior statements of bigotry are automatically conclusive in the future.  They’re just worth what they’re worth.  Would the President have done this thing irrespective of anti-Muslim prejudice?  If so, it’s constitutional, even if there are other things he’s done in the past that were motivated by unconstitutional animus.  What he said and did in the past is, again, neither more nor less than potential evidence of why he took the particular challenged action.

The choice by both lawyers in the case to offer implausible formalisms instead of this more realistic analysis may reflect a fear of asking courts to make case-by-case judgments—especially about the President, and especially in the realms of national security and foreign affairs.  But constitutional law as currently constituted makes the validity of lots of governmental actions turn on the motives or purposes of the relevant government actors.  That’s true in the First Amendment context, and it’s true in equal protection as well.  If those are the rules, then courts are going to need to ask why government actors acted.  Rules about magic words are not going to give us the real answers.  As applied here, what they’ll give us instead is license for the President to act on the basis of unconstitutional motives, more or less secure in the knowledge that the courts will pretend not to know why he acted. 

There are excellent reasons why the President should get the benefit of the doubt where national security is concerned.  When courts do motive analysis in contexts like these, they should not lightly conclude that the President acted for impermissible motives.  But the benefit of the doubt is one thing, and fictionalizing the account of motive so as to avoid reaching a certain conclusion is something else.  It crosses the line from deference to abdication.


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The Trump administration’s revamped expedited removal system unsettles the rulings that upheld the expedited removal system against constitutional challenges.

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