//  6/26/18  //  Commentary

Today’s deeply unfortunate Supreme Court decision in Trump v. Hawaii will provide fodder for analysis and discussion for a very long time.  I hope that the decision will soon come to be seen as one of the Court’s self-inflicted wounds.  For now, I will offer short thoughts on three aspects of the decision.  One is about judicial deference to executive authority at the doctrinal level.  One is about the larger institutional dynamics of confrontation between those two branches.  And one is about the much-discussed relationship between today’s decision and Korematsu v. United States. 

(1) Deference, at the level of doctrine

As a general matter, it is appropriate for courts to give the executive branch considerable deference on questions of national security and foreign affairs.  The executive branch has primary responsibility for those matters, and it information and expertise that exceeds what is available to judges.  But deference comes in many forms, and the particular form of deference that the Court articulated in today’s decision is an odd fit with those reasons for deference.

Officially, the Court explained that the executive branch’s decisions at issue in the case were subject to rational basis scrutiny.  More particularly, Chief Justice Roberts articulated the standard as follows: “[W]e will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”  That formula could be read in at least two ways, one factual and one hypothetical.  On the factual reading, the question of reasonable understanding is a question about how the policy actually came to be.  Is it reasonable, the question would run, to think that unconstitutional motivations are not a but-for cause of the policy?  On the hypothetical reading, the question is whether the Court can imagine the policy’s coming into being without unconstitutional motivations.  The second version is of course considerably more permissive, and it is the second reading that makes sense in the context of today’s decision.  As a matter of historical narrative, it is not reasonable to think that the present entry ban would exist absent President Trump’s bigotry.  So to say that the policy can reasonably be understood to result from a justification independent of unconstitutional grounds is to say that one could reasonably imagine an executive branch’s implementing this policy for legitimate reasons. 

This second and more permissive construction of the standard is not unknown in constitutional law.  It looks a lot like the kind of rational-bases scrutiny associated with Williamson v. Lee Optical: courts ask not why a specific legislature actually passed a given law but whether a hypothetical reasonable legislature could pass that law.  That standard is often criticized, but it also has merits, and in any event it has pedigree in constitutional doctrine. 

Note, however, that in the Lee Optical context the rationale for that degree of deference is not a matter of the relative expertise of the other branch.  It’s something less refined—more or less, it’s the brute idea that courts shouldn’t be mucking about in the normal sausage-making of the legislative process.  Maybe that’s because we generally worry about judicial policymaking, or maybe it’s because we want to limit the potential for interbranch conflict.  But it isn’t because we think we’re in an area where legislatures know better than courts.  If anything, that level of deference is motivated by the fear that courts will know only too well that they’re looking at shenanigans, if they’re permitted to look at what is really going on.

Now come back to Hawaii v. Trump.  The idea that the executive branch should get deference because of its superior expertise in foreign affairs and national security makes sense on its own terms.  But to the extent that that rationale is the basis for judicial deference, courts should be examining the executive branch’s actual reasons for action, not a more palatable set of hypothetical reasons that the courts (or the executive branch’s lawyers) can imagine.  The point of deferring to expertise is that the expert knows better.  If a more expert branch takes an action and explains why its expertise points to that action, courts should be reluctant to think that they know better than the expert.  But if the court judges the constitutionality of an action on the basis of something that isn’t actually the real reason why the other branch acted, then the rationale to which it is deferring is not the rationale that persuaded an expert to act.  It’s just a rationale that the expert’s lawyers figured would sound plausible to non-expert judges.  And the other branch is getting the benefit of deference because it is in general considered an expert on the topic, whether or not it is actually applying that expertise in the case at hand.

This doesn’t mean that courts should never conduct hypothetical rational-basis review of executive branch actions.  Maybe sometimes they should.  But if so, it’s for more general reasons of wanting to keep courts out of the workings of the executive branch—reasons less pretty than deference to expertise. 

(2) Interbranch confrontation

That brings us to the matter of conflict between the judiciary and the executive at a level larger than that of doctrine.  Structurally, one of the important functions of the judiciary is to act as a check on executive power.  As executive power has grown within the federal government over time, that function has become all the more important.  But it is also well-known that the judiciary’s capacity for checking executive power is limited.  Justice Jackson made an appearance in today’s opinions via his Korematsu dissent, but the Jackson opinion that might actually contain the more important lessons of the day is his Youngstown concurrence, in which he warned that in the face of a President who actually threatened the constitutional order, it would be unwise to look to the courts for salvation.

It’s important to remember that principle now.  Not as a counsel of doom, but as both a goad to political action and even, perhaps, as a way of softening the blow of Hawaii v. Trump.  Not that the decision isn’t awful; it is.  But in assessing the overall situation of the constitutional republic, there’s an important distinction between an awful decision and a decision that is both awful and unexpected.  The less that we should expect the courts to solve the problem of the Trump Administration, the less worried we should be when they fail to do so.  The real problem is the Trump Administration itself; what feels like damage today is largely the echo of damage that already happened, rather than something new. 

But at the same time, it would be a mistake to think that the courts have no role to play.  The fact that the courts will not save the Republic doesn’t mean that they are of no consequence.  They’re actually quite consequential, and they have the capacity to mitigate and slow down the damage that the Trump Administration does—or to accelerate it—even if real solutions will ultimately have to come from elsewhere.  Even in the entry-ban saga, the courts produced mitigation.  Yes, in the end the Supreme Court handed President Trump a victory on his entry ban.  But the entry ban that was upheld was the third version of the entry ban, to which the Administration retreated because the first two versions had problems in court that the Administration’s lawyers thought probably could not be overcome.  That doesn’t excuse the Supreme Court for its decision today, of course.  Hawaii v. Trump could and should have been decided differently.  It’s just a word of caution against the tendency to jump from “the courts will not save us” to “the courts are unimportant.”

(3) Korematsu  

I’ve written before about the way that Korematsu, as a consensus evil from the past, can make it easy to justify different evils in the present.  If we agree that Korematsu was bad, we can too easily look at something today and say “Well, this is not Korematsu.”  Much as people during Jim Crow could say “This isn’t slavery.”  Today, though, I want to enter more minutely into the majority’s treatment of Korematsu.

Responding to Justice Sotomayor’s contention that the Court in Trump v. Hawaii was repeating mistakes from Korematsu, Roberts insisted that “Korematsu has nothing to do with this case.”  And then, in the next paragraph, Roberts repudiated Korematsu, declaring it wrong the day it was decided and of no authority in constitutional law.  That repudiation is being described in some quarters as the Court’s “overruling” Korematsu, which can’t be right in a formal sense: the opinion said just one paragraph before that the cases have nothing to do with each other, nothing in Korematsu is a doctrinal obstacle to the outcome in Trump v. Hawaii, and formally a case can only overrule a prior case when doing so is necessary to the new holding.  So technically, the repudiation is merely dictum.  As a practical matter, though, this analysis doesn’t matter much: future lawyers who want to make the point that Korematsu should not be regarded as authoritative will point to Trump v. Hawaii, and other lawyers will nod their heads.  (Until and unless the constitutional culture further degenerates to the point where large numbers of judges are willing to endorse Korematsu on the merits, at which point someone can argue that Roberts’s repudiation can’t be a holding.)

The more substantive problem with the majority’s treatment of Korematsu is its attempt at doctrinal distinction.  “The forcible relocation of U.S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority,” the Chief Justice wrote.  That makes it different, in his view, from the entry ban, which is “well within executive authority,” such that “the only question is evaluating the actions of this particular President in promulgating an otherwise valid Proclamation.”

What is meant by describing the Korematsu order as “objectively unlawful”?  I take it the Chief Justice means to say that that order was invalid regardless of the “subjective” motivations of the people who promulgated it, such that the issues in that case were different from the present one, which is all about the President’s subjective motivations.  (Well, not his actual subjective motivations—see supra—but some that could be hypothetically attributed to his branch of government.)           But it is simply wrong to say that the exclusion order in Korematsu was invalid independent of the motivations behind it.  Without regard to motives, that order was subject to strict scrutiny, because it discriminated explicitly on the basis of race, as the Korematsu Court itself wrote.  But whether the order could survive strict scrutiny is a question that could only be answered by reference to an inquiry into governmental purposes.  That’s why the Korematsu Court had to deny that the order had a racially prejudicial motive—a denial that Justice Murphy’s dissent incredulously rejected. 

In other words, the dispute in Korematsu was entirely about how to characterize the motivations behind the exclusion order.  That’s a point of commonality, not of difference, between Korematsu and Hawaii v. Trump. 

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