By Corey Brettschneider

In the recent travel ban appeals, the acting solicitor general (ASG) relied largely on a case called Kleindanst v. Mandel to argue that those outside the country are not protected by the Establishment Clause. But, as the Fourth Circuit Court of Appeals observed today in its decision blocking the travel ban, he also unwittingly helped make the case against the ban in his description of Mandel’s holding. The Fourth Circuit reasoned that while matters of immigration require deference to the executive, this deference does not extend to executive orders based in “bad faith” or animus. 

In this post I clarify that logic and show why it doomed the ASG's position.

In Mandel, the Court concluded that immigration rules that were alleged to have discriminated on the basis of ideology did not violate the Free Speech Clause of the First Amendment. At oral argument in the Fourth Circuit travel ban case, the ASG argued that Mandel offers an alternative to cases like Church of Lukumi Babalu Aye, Inc. v. Hialeah (1992) and Lemon v. Kurtzman (1971) in thinking about how to apply the Religion Clauses in cases involving those outside the country (or at our borders). He contended that, under Mandel and subsequent cases interpreting it, all the government need show in the immigration context is a “rational basis” for its actions, rather than the more demanding showing required under traditional Establishment Clause doctrine.

But this analysis invites, rather than disavows, application of the animus doctrine that the Supreme Court developed in cases like Lukumi—and that I argued in an earlier essay in Politico and an amicus brief (along with my co-organizers Micah Schwartzman and Nelson Tebbe, Joshua Matz, who did the primary drafting and many other constitutional law scholars who signed the brief) should be central to this case.

According to settled animus doctrine, laws that are based primarily in irrational prejudice lack a rational basis. Indeed, it was in Romer v. Evans (1996) that the Court most thoroughly described the rule against animus—and did so while insisting that the proper standard of review was rational basis. So to invite rational basis review is to ask whether the law is based in animus. In other words, if Mandel is understood as a mere rational basis case, this would compel review under Lukumi, not exclude it. (That conclusion is consistent with the view that Mandel’s requirement of a “bona fide” reason for governmental action precludes the government from acting in “bad faith.”)

To be sure, in Mandel itself the Supreme Court found that discrimination based on ideology might have a rational basis in the midst of the Cold War.  But a law based on prejudice against Muslims has no such conceivable rationale.

A more radical view would hold that not even rational basis review applies to immigration rules in cases concerning persons outside the country. On this view, those beyond our national boundaries are not even covered by the Establishment, Free Exercise or Equal Protection Clauses. But no case has ever said that the Establishment Clause does not apply to immigration policy.  Indeed, the logic of the Clause demands that it be held to apply—if not directly to the persons abroad, then to the exercise of governmental power here in America. As Ira Lupu and others have argued, the Clause is fundamentally about what constitutes illegitimate uses of government power, not about particular rights holders.  

That structural argument about the Establishment Clause also extends to rationality review under the Free Exercise and the Fifth Amendment equal protection principle. Legitimate government action of any kind, regardless of whether it is directed to those inside or outside the nation’s boarders, requires a rational basis. Animus toward any particular religion or ethnicity as a motivation for government action means there is no rational basis for that action, since its very object is forbidden. 

Accordingly, as the Fourth Circuit recognized today, even if Mandel supplies the rule of decision and requires rationality review, animus is fatal even under that standard.  

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