Thursday, October 05, 2017

The Travel Ban and the Ontology of the Compelling Interest Test

by Michael Dorf

In my Verdict column for this week, I discusse how the Trump administration's release of Travel Ban 3.0 should affect the pending SCOTUS challenge to Travel Ban 2.0. I mostly steer clear of the mootness questions on which briefs will be filed today. I assume that even if the Court holds the current litigation moot, the validity of Ban 3.0 will be litigated in the lower courts almost immediately. My column discusses both statutory and constitutional objections to Ban 3.0, but here I will focus on the latter.

As I note in the column, the substitution of one mostly-Muslim country (Chad) for another (Sudan), the addition of some Venezuelan government officials, and the addition of a country that sends virtually none of its nationals to the US (North Korea) does not diminish the strength of the plaintiffs' prima facie case of discrimination: (1) The policy has a pronounced disparate impact on Muslims; and (2) that disparate impact is intentional, in the sense that, but for Trump's clearly displayed anti-Muslim animus, Ban 3.0 would not exist.

Therefore, the proper legal question (assuming courts get over any justiciability hurdles and arguments that ordinary constitutional principles have no bearing in the immigration context) is whether the intentionally discriminatory policy survives strict scrutiny, i.e., whether it is narrowly tailored to a compelling interest. Here I want to ask whether it makes sense to apply strict scrutiny--rather than a rule of per se invalidation--to laws and policies (such as the Travel Ban) that are motivated by animus.

In March, I asked why the Establishment Clause had emerged as the chief basis for challenging the Travel Ban. After all, there are other constitutional provisions that forbid religious discrimination, such as the Free Exercise Clause or the equal protection component of the Fifth Amendment Due Process Clause. The answer, I suggested, is that the Establishment Clause is "structural"--a limit on what the government can do rather than specifically a reservation of an individual right. That difference is potentially important, I explained, because of cases holding that non-citizens outside the US have fewer constitutional rights than persons inside the US (or maybe even no such rights). A structural provision is not a "right," so it limits the government everywhere.

But might the structural nature of the Establishment Clause have another implication? Structural provisions of the Constitution tend to have an on/off quality: they are not subject to balancing or other tests for overriding them. Congress has the power to regulate interstate commerce, but if Congress attempts to regulate beyond the scope of the commerce power or any other power, the resulting law is invalid; courts do not say that Congress cannot regulate beyond the scope of its enumerated powers unless the law passes strict scrutiny. Likewise, courts do not say that the president cannot usurp congressional authority unless his doing so survives strict scrutiny.

To be sure, even in federalism and separation-of-powers cases, there may be a kind of balancing going on. Instead of allowing a prima facie infringement to survive, the courts take account of countervailing interests in considering whether there even is a prima facie infringement. That said, however, the on/off character of structural provisions has consequences.

For example, the Court ruled in Printz v. United States that Congress categorically lacks authority to "commandeer" state and local executive officials. In dissent, Justice Stevens worried that the Court's rule could prove disastrous in a national emergency, when federal officials might need to organize and mobilize state and local relief efforts before there is time to mount a response using federal personnel. Notably, the majority did not respond by saying that the anti-commandeering principle would yield in such a case because it is defeasible under the strict scrutiny test. The dissent was correct that the rule is non-defeasible.

Note that this does not necessarily mean the dissent was right about the bottom line. In a true emergency, it could be expected that state and local officials would voluntarily cooperate with federal orders, and such voluntary cooperation would not implicate the anti-commandeering rule. But I'm not now interested in whether the majority or dissent in Printz had the better of the argument. I'm interested in the common ground--namely, that in other domains, structural constitutional provisions are not subject to being overridden.

Not so for the Establishment Clause, at least not where the particular Establishment Clause claim is that government has discriminated based on religion. Then, the compelling interest test applies. So said the SCOTUS in Larson v. Valente, where it matter-of-factly applied the test in a religious discrimination case under the Establishment Clause.

And that makes a kind of sense. Given that laws challenged as discriminating based on race, national origin, and religion trigger strict scrutiny when the underlying claim is brought pursuant to the Equal Protection Clause (or the equal protection component of the Fifth Amendment's Due Process Clause where the federal government's laws or policies are at issue), it would be odd to subject such laws discriminating on the basis of religion to a rule of per se invalidation under the Establishment Clause.

But maybe the whole compelling interest test is misguided in such cases.

In a 1997 article in the Yale Law Journal, Jed Rubenfeld argued that the compelling interest test makes sense as a means of "smoking out" illicit government motive (borrowing a phrase from the Court's affirmative action case law), but that it cannot be justified as a means of balancing costs and benefits. The real harm of a race-based classification, Rubenfeld argued, is not the classification itself but the fact that the classification instantiates white supremacy or some other caste or racial spoils system--and strict scrutiny will help us figure out whether that is a fact.

Rubenfeld's article was titled Affirmative Action and so he considered cases in which government uses an express racial classification that it justifies on remedial, diversity, or other benign grounds. He says that strict scrutiny or some other kind of heightened scrutiny can be justified in such cases, if at all, on the smoking-out theory but not the cost-benefit theory. I tend to agree.

But notice what happens if we apply Rubenfeld's theory to laws and policies--like the Travel Ban--that are facially neutral but have a disparate impact that, we are satisfied based on the evidence, was intended: Because, under Rubenfeld's theory, illicit purpose is the unconstitutional thing itself--the thing that strict scrutiny would aim to smoke out--there is no reason to apply strict scrutiny, which, by hypothesis, can only be applied in such circumstances on the rejected cost-benefit theory. Instead, I take the logic of Rubenfeld's argument to imply that if a court finds that a law or policy has a disparate impact based on an illicit criterion (such as race or religion) and that disparate impact was purposeful (i.e., the law or policy was chosen because, rather than in spite, of the disparate impact), the court should find the law or policy invalid without proceeding to a further step of applying strict scrutiny.

Yet even though I find Rubenfeld's argument largely persuasive in its own domain, I think this implication is wrong. If a court were truly convinced that Travel Ban 3.0 is narrowly tailored to serve the compelling interest in national security, I would want the court to uphold the Ban, notwithstanding the fact that it was chosen for an illicit reason and has a disparate impact based on the illicit classification.

How likely is that? Not very. We need to imagine that some law or policy is indispensable to serve some extremely important policy objective but that the government decision maker or makers did not adopt the law or policy for the purpose of serving that purpose; rather he or they adopted it for some illicit purpose; it just coincidentally confers these vital benefits.

I do not think that this is likely to be the right outcome of the application of strict scrutiny to Travel Ban 3.0, mostly because there have been exactly zero acts of terrorism perpetrated by nationals of the listed countries over the last several decades. Based on the statistics, a ban on US citizens entering the country would be more effective in protecting innocent lives.

Still, it is possible to imagine a much closer case. Suppose that after conducting the review of screening procedures, the administration had come up with something very different but a policy that still had a disparate impact on Muslims. In those circumstances, we might conclude that Trump's anti-Muslim bias was a but-for cause of the ultimate policy--because it set in motion a course of events that would not have occurred otherwise but that ultimately led to Ban 3.0--AND that the policy chosen by others who don't share Trump's anti-Muslim bias satisfies strict scrutiny. That conclusion, in the admittedly hypothetical case, leads me to think that Rubenfeld was at least partly wrong. There are circumstances in which the compelling interest test is properly conceived in cost-benefit terms rather than as a smoking-out device.


Marty Lederman said...

But Mike, the government isn't arguing that the ban would be lawful even if it was a form of religious discrimination--indeed, at oral argument below, IIRC, Jeff Wall conceded that religion couldn't even be used as a proxy for national security considerations. More than that -- I can't think of a single case ever in which a government has attempted to seriously defend any sect-based discrimination--whatever Larson might say, it has de facto been treated as per se impermissible.

Michael C. Dorf said...

1) I'm not sure how much that concession is worth, given that the SG also argues that the whole policy is non-justiciable w/r/t any rights asserted by aliens.
2) I think that concession is much like Gunther's characterization of strict scrutiny of racial classifications as "strict in theory, fatal in fact." That's basically right, except it's a characterization of how the doctrine works, not what the doctrine actually says.
3) So it's smart lawyering for the SG to make the concession.

BUT I think my point is right as a theoretical matter anyway. But for Trump's animus, there wouldn't have been a global review. Suppose that review revealed an existential threat of deadly contagion from 6 majority-Muslim countries. Under the official doctrine, the but-for causation of animus leads to the policy that has a disparate impact, so strict scrutiny applies. But it's satisfied. Now maybe you want to say that in this hypo, the screening procedure review is an intervening cause that means that the policy is NOT motivated by animus. I would be okay with that, but I don't think that's obviously how the doctrine works.

sara said...

is your hypo perhaps addressed if the court does an Arlington Heights burden-shifting type analysis on the intent question? ie, if there's evidence animus actually motivated the policy but the govt can prove they would have done it exactly the same way anyway (considering only permissible motives), then it's ok; if the govt can't prove that, then the policy also fails strict scrutiny bc that must mean it's not narrowly tailored to whatever other purposes might justify the law (ie, but-for the animus it would have been designed differently). although I guess the question is whether it matters in this hypo that the review itself was only created bc of/and temporally postdates the animus, kind of a fruit of the poisonous tree situation.

Asher Steinberg said...

Perhaps I can thread the needle between the (first) two of you and say something neither of you will agree with.

Bracketing that I think strict scrutiny probably doesn't apply here at all under Fiallo, I vehemently disagree with Wall's concession and can see no reason why religious classifications (bracketing animus) would be per se invalid, rather than subjects of strict scrutiny. Racial classifications certainly don't work that way, and contra to "strict in theory, fatal in fact," strict scrutiny hasn't been that fatal in affirmative action. Now, of course you can say that that's because strict scrutiny shouldn't apply there (I probably agree) or because it isn't being applied (an arguable position, and it probably has been applied at something more like intermediate-scrutiny strength in those cases), but that's the doctrine.

I don't see why religious classifications should be different, or why all of them should be invalid; if we assume that strict scrutiny does apply to facial religious classifications in immigration, I think courts should be willing to uphold facial entry bans of, e.g., human-sacrifice cults, or religions that are seriously and not just theologically committed to exterminating members of certain rival religions and expect all their members to engage in that conduct. I'm not a student of religion and am not suggesting that religions or sects like this exist or that any sect of Islam is like it, but I take it that such religions, sects and cults have historically existed and could exist in the future, so I can't see a per se rule against all facial religious classifications.

That said, I do think that animus against a religion is a ground for per se invalidity. The reason I'm content with per se invalidity for animus-based laws is that I don't agree that a law is deemed animus-based whenever animus is one of its but-for causes. For example, a legislator is motivated by animus to propose some sort of anti-crime bill. His bill is overbroad and nakedly motivated to harm some minority, but his bill does address a serious kind of crime. Prompted by his proposal, a committee comprised of members who lack animus write a bill from scratch that's perfectly well-tailored to addressing the sort of crime that the proponent purported to be concerned about, and it's passed by Congress and signed into law. I don't think that it would be correct to say that that law was enacted for an illicit reason; the writers of the law and, with one exception, the legislators who voted for it didn't write or vote for any part of it for an illicit reason.

Now, if a President says to his counselors, "write me a rule that bans entry to whomever you think are the most dangerous Muslims, because I want to ban entry to some Muslims," and these counselors who aren't personally motivated by animus do what he says, I think you still have an animus-based ban. The reason they're selecting dangerous Muslims at all is an animus-based directive. But if the President orders a policy review on the basis of animus, without an order about what the end result of the review should look like, and if at the conclusion of that review non-animus-motivated actors adopt a policy that has a disparate impact on a minority or even facially discriminates against a minority, I don't see how their policy is the product of animus in the relevant sense. If but-for causation were the test for animus, it seems to me that animus would be at play far more often than can tenably be the case, and that strict scrutiny would apply - as I take it you're proposing in cases of animus - to all sorts of facially neutral laws that it has no business applying to and that might improperly fall victim to strict scrutiny for lack of narrow tailoring.

Shag from Brookline said...

Asher's 3-way debate effort possibly may not get a response from either Marty or Mike, even with or especially because of his opening " ... and say something neither of you will agree with." I don't wish to make this a 4-way but Asher's multiple references to "animus" triggered in my mind Frank Sinatra's "Too Marvelous for Words" and its line " ... and that old standby amorous ... " and mentally substituting "animus" for "amorous." I don't recall the Constitution's use of "animus" in its text and wonder how textualism and originalism address how "animus" applies in constitutional interpretation/construction. Perhaps the Justices should address their own possible "animus" as well as the possible "animus" of Congress and/or the Executive. Possibly a second Constitutional Convention might, inter alia, address the role of "animus."

Asher Steinberg said...

If nothing else, this comment pleasantly reminded me of Dean Martin's delivery of "you can't blame me for feeling amorous" in his performance of S'Wonderful in the opening credits of Kiss Me Stupid, a film everyone should see if they haven't. One of the bright spots in Wilder's overrated filmography.

Shag from Brookline said...

Of course a 3-way legal debate is more animus than amorous. Dino was a great singer and had a great sense of humor with and without Jerry.