Wednesday, September 18, 2019

Mere Pretext, Illicit Motive, and a Proposed New Level of "Super-Strict Scrutiny"

by Michael C. Dorf

In my latest Verdict column, I discuss the recent announcement by EPA Administrator Andrew Wheeler of a new initiative to reduce government-funded and government-mandated testing of chemicals on animals. I consider objections of environmental and public health groups. I say these groups have good reasons to question the motives of Wheeler and the Trump administration, given their record on environmental protection more generally. Perhaps Wheeler and Trump do not care about reducing animal use and suffering but are only using animal protection as a pretext to deregulate the chemical industry. I conclude that while the subjective motives of Wheeler and Trump provide a reason to take a very close look at whether the policy is justified, after taking that look, the policy should be supported.

In the column, I distinguish between two sorts of bad motives. (1) Merely pretextual motives might be bad in a policy sense but not inherently illicit. Deregulation is an example. Environmentalists like me might think that any particular program that is justified in terms of something else (like animal wellbeing) is simply a pretext for deregulation that is on-net harmful, but we would not say that deregulation is inherently illegitimate. (2) Some other motives are inherently illicit. Here I have in mind various forms of animus that constitutional and statutory law single out as presumptively impermissible. Standard examples include race, national origin, race, sex, sexual orientation, gender identity, and others. There are rare circumstances in which classifications based on one or another of these grounds is permissible, but maybe policies rooted in animus on such grounds ought never to be permissible.

In the balance of this essay, I want to explore how the law does and should distinguish between what I'll call mere pretext and illicit motive.

Let me begin by stating the problem clearly. In the column, I say (as I said above and now I'm saying for the third time!) that the suspicion of a pretextual motive is a reason to evaluate a policy closely but not to reject it out of hand. That's what I do with respect to the EPA animal-testing-reduction policy. But now one might say that what I've proposed--a kind of strict scrutiny when one suspects mere pretext--is the same kind of scrutiny that one applies when a policy appears to be aimed at race, national origin, etc. Constitutional doctrine, which, though not applicable of its own force here, serves as a model, applies strict scrutiny to such policies. So how is mere pretext different from illicit motive?

The answer I suggested above is that mere pretext triggers a close look, whereas policies that serve an illicit motive (like racial or religious animus) ought to be per se invalid. However, as I shall now explain, that answer strikes me as not quite right.

Consider racial classifications. Under constitutional doctrine, use of a racial classification or a facially neutral policy adopted for a race-based reason triggers strict scrutiny. Even if a policy was adopted out of racial animus, it can, in principle, survive strict scrutiny. Yet in a thoughtful 1997 article in the Yale Law Journal, Prof Jed Rubenfeld critiqued constitutional doctrine as misguided on that point. He argued that strict scrutiny should not be conceived (and cannot be justified) as a matter of cost-benefit analysis but makes sense if understood (in the words of a then-recent opinion) as a means of " 'smoking out' invidious purposes masquerading behind putatively legitimate public policy."

There's much that makes sense there, but there could nonetheless be cases in which a policy adopted for invidious purposes should nonetheless be upheld. Consider the travel ban litigation. The Supreme Court did not subject the travel ban to anything like strict scrutiny. If it had, the ban would not have survived, because even though there were reasons to be concerned about travelers from the particular countries that ended up on the list of Travel Ban version 3 (the version the SCOTUS considered), classification based on nationality was both over- and under-inclusive. Suppose, however, that the travel ban did satisfy strict scrutiny. Or suppose some other policy that was adopted for a subjectively invidious purpose but that in fact serves some vital function, such as national security.

It's difficult to imagine a realistic scenario in which the distinction I'm drawing comes into play but maybe less difficult than in the past, given our current president. Imagine a deadly virus that public health professionals believe can best be addressed by sealing the southern border for a month. Experts inform the president, but he is uninterested, until he learns that keeping the virus out will have the incidental effect of reducing migration generally. He tells the relevant government officials: "I don't care about any stupid virus, but I hate people with dark skin entering our country, so close the border for that reason."

Should the decision to seal the border be valid? My view is yes, but only because it is not just a good idea, not just that it is narrowly tailored to serve a compelling interest, but that it is super-important. It is the rare instance of a public policy that is motivated by an illicit purpose but ought to be permitted anyway, because any rational administration would pursue it; here we happen to have a non-rational racist administration that is pursuing it for a bad reason; and while that would be enough to invalidate a policy that is important or even compelling but not essential, it should not be enough to invalidate an essential policy.

Accordingly, I think that as a matter of external evaluation, whether by judges or others, there ought to be a level of scrutiny beyond strict scrutiny--what I'm tentatively calling super-strict scrutiny--that allows even illicitly motivated policies in very rare circumstances.