//  5/31/17  //  Uncategorized

The Fourth Circuit’s en banc decision in IRAP v. Trump is the latest in a string of high-profile cases—not all of them involving the President—that turn on constitutional investigation of government purpose. The opinions in IRAP are deeply divided about which doctrinal rules apply to the analysis: Kleindienst v. Mandel’s deference, for example, or Lemon v. Kurtzman’s heightened scrutiny.

But underlying that division is another one, for which constitutional doctrine does not currently provide a ready answer: If a court finds that the government has acted with an impermissible purpose—one discriminating against Muslims, say—what can the government do to remove the taint?

It is tempting to put off the question of remedy and to focus first on the conceptually-prior task of showing impermissible animus. And yet the questions are deeply inter-related. As the Fourth Circuit opinions demonstrate, judges’ willingness to recognize impermissible purpose depends in part on what they see as the costs of doing so. The harder it is for the government to clean its hands, the more reluctant some judges—or, looking into the near future, some Justices—will be to recognize when they are dirty.

It is unsurprising, then, that the dissenting judges in IRAP focused on the lack of an articulated standard for curing animus. In his dissenting opinion, Judge Niemeyer cast the problem as one of institutional competence:

[O]ur courts will be faced with the unworkable task of determining when this President’s supposed religious motive has sufficiently dissipated so as to allow executive action toward these or other majority-Muslim countries.

In his separate dissent, Judge Shedd tied the lack of remedy to his over-arching concern that the President and his national security advisors “will be seriously hampered in their ability to ability to exercise their constitutional duty to protect this country,” noting that “[a]t oral argument, several judges (including myself) questioned when, if ever, the President could free himself from the stigma of bias that the district court has enshrined by its preliminary ‘factfinding.’ Notably, no one has provided a satisfactory response.”

Such a response is hard to find in caselaw, which has focused much more on diagnosis than on cure. Accordingly, the judges in the majority suggested, reasonably enough, that the cure would demand a context-specific inquiry. As Judge Wynn put it in his concurrence:

The answer to the rhetorical question of whether the President will be able to “free himself from the stigma” of his own self-inflicted statements, lies in determining whether the Executive Order complies with the rule of law. That requires us to consider, in each instance, how the character, temporality, and nature of the President’s repeated, public embrace of an invidiously discriminatory policy offensive to the Constitution bear on a challenged policy.

Such an approach is not unlike the one the court used to find animus in the first place.

The closest that the opinions came to directly engaging one another on the question of remedy was in their disagreement about whether Trump’s campaign statements were relevant to establishing the purpose of actions he has taken as president. In a footnote, Judge Gregory’s opinion for the court concluded that “Whether a statement continues to taint a government action is a fact-specific inquiry for the court evaluating the statement,” borrowing from the Supreme Court’s observation in McCreary County v. ACLU that when courts recognize impermissible government motive they “do not decide that the [government officials’] past actions forever taint any effort on their part to deal with the subject matter.”

McCreary does not specifically say how that taint is to be removed, only that it should involve “genuine changes in constitutionally significant conditions.” What changes might those be? Considering an analogous question in the context of an unconstitutional endorsement of religion, the Tenth Circuit concluded “that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion.”

It is not easy to articulate a single, trans-substantive test for curing unconstitutional intent. But describing a cure is not radically different from that of diagnosis, which the Court has done in a variety of contexts, from Lemon to Arlington Heights v. Metropolitan Housing. Perhaps it makes sense, then, to begin with familiar factors like impact, historical background, departures from normal procedure, and contemporary statements made by the relevant government officials.

It would be a mistake, however, to conflate the inquiries entirely, and to permit the government simply to re-enact the same action (or a substantially similar one, as in the case of the revised entry ban) and effectively seek a second opinion. At the very least, following a judicial finding of animus, the burden should shift to the government—otherwise the finding of purpose would essentially be irrelevant. Doctrinally, this could mean something as straightforward as applying heightened scrutiny to any subsequent enactment. After all, one of the traditional functions of heightened scrutiny has been to smoke out invidious governmental purpose. Once such a purpose has been shown, that type of scrutiny could be well-suited to determine whether it has been cleansed. Given courts’ general reluctance to find impermissible motive, this medicine—strong though it may seem—is unlikely to be prescribed often.

The IRAP majority quotes McCreary’s observation that the reasonable observer’s “world is not made brand new every morning.” Now that courts have identified an impermissible motive behind the executive order, the power of precedent makes that proposition all the more relevant. The significance of the holding, and the likelihood of it being replicated elsewhere, depends in part on identifying a path to a cure.  

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