//  1/16/18  //  Commentary

One should be reluctant to call an elected official—much less the President of the United States—a racist.  I have written against, for instance, the hasty conclusion that George W. Bush’s anemic response to Hurricane Katrina was evidence of his indifference or hostility to African-Americans.  Duly elected leaders deserve the benefit of the doubt: there are many reasons that executive decisions may inadvertently disadvantage members of minority racial groups and many innocent but artless comments can be misconstrued by the uncharitable as evidence of bigotry.

Sadly, the 45th President has left no doubt from which he could benefit.  In increasingly vile and shocking ways, Trump has proven himself an unreformed racist on the model of the authors of Massive Resistance.  The latest in a string of countless outrages was his statement, reported by Senator Richard Durbin, that the United States should not accept migrants from “shithole” countries such as Haiti, El Salvador and some African nations and should instead encourage immigration from countries such as Norway.  In an earlier meeting, Trump insisted that people from Nigeria—a nation with one of the world’s largest urban areas—would never “go back to their huts” after having tasted life in the United States.  And lest we forget, this is the man who called the neo-Nazis who terrorized Charlottesville “fine people,” retweeted the provocations of white supremacists, inexplicably delayed disavowing the support of KKK leader David Duke, argued, against all evidence, that President Obama was born in Africa and insisted on the guilt of black criminal defendants who had been exonerated by DNA evidence.  Apologists will say one cannot know what is inside the man’s heart.   But if we can know anything of anyone’s character, mental state or culpability, we know that Trump is a racist. Not only does this make is impossible for anyone of African descent to accept this bigot as his President, it also makes almost every policy of his administration that might have racial overtones or consequences an occasion for Constitutional crisis. 

The Constitution does not prevent a racist from serving as President.  But it does prohibit laws and public policy decisions motivated by racial animus (this is true whether one interprets the equal protection clause of the 14th Amendment to bar such animus directly or indirectly as a racial classification that fails to advance a legitimate and compelling governmental interest.)  Trump’s demonstrated racial animus is therefore evidence of discriminatory motivation—arguably in any decision that disadvantages the many racial groups he has disparaged, and unquestionably in any decision about which he has deliberated in such racially charged terms. 

Typically, discrimination is very difficult to establish with respect to public policy because Constitutional law requires evidence of motivation—discriminatory effects are insufficient—and because motivation is very difficult to establish.  For instance, the Supreme Court held in Village of Arlington Heights v. Metropolitan Housing Corporation that evidence that some opponents of a zoning variance that would have allowed low income housing were racially motivated was insufficient to establish a violation of equal protection because the decision itself was made by a multi member body in which many legitimate, non-racial reasons for the decision were also expressed.  In short, while racism was in the air, it wasn’t clear that it was responsible for the decision. 

But, imagine, in a city where land use policy requires executive approval, a mayor who declares that the city should not allow housing that would attract people from “shithole” neighborhoods such as Harlem and the South Bronx but instead should encourage nice people from the Upper East Side of Manhattan to move to town.  If that mayor were later to veto a zoning variance for low income housing likely to attract African-Americans, the earlier statements would be powerful—likely conclusive—evidence that the decision was racially motivated. 

Similarly, Trump’s repeated bigoted statements make it more likely than not that any actions that disadvantage members of the groups he has disparaged were motivated by Constitutionally impermissible considerations.  Indeed, not only Trump’s ideological enemies but also thoughtful conservatives recognize that this conclusion is now inescapable.  This compels a reversal of the typical presumption of Constitutionality: with respect to Trump, it is reasonable to presume discriminatory motivation absent evidence to the contrary, at least with respect to immigration policy, and arguably with respect to any policy affecting minority groups.  And since we must presume that this President has and will continue to willfully violate the Constitution he has sworn to uphold, we must conclude that he is unfit to hold office, not only as a matter of character and temperament, but also as matter of our nation’s higher law. 


Could A Ruling Against LGBT Rights in Bostock Allow Employers to Discriminate on the Basis of Religion?

10/7/19  //  Commentary

Permitting employers to discriminate against LGBT employees would open to the door to the same kind of discrimination against millions of Americans of faith

Aaron Tang

UC Davis School of Law

Symposium on June Medical Services v Gee

10/4/19  //  In-Depth Analysis

June Medical Services v. Gee involves a Louisiana law that would require abortion providers to obtain admitting privileges at a hospital within 30 miles of where they perform abortions. SCOTUS has granted review of the constitutionality of that law.

Take Care

June Medical And The End of Reproductive Justice

10/2/19  //  In-Depth Analysis

While June Medical does not ask the Court to overturn Roe v. Wade or Planned Parenthood v. Casey, the practical effect of the state’s positions would allow states to regulate abortion out of existence

Leah Litman

Michigan Law School