In a deservedly much-criticized recent speech before the Federalist Society, Attorney General William Barr outlined an extraordinarily expansive view of executive power. One aspect that, until recently, did not get much attention is his claim that it is almost always improper for courts to examine the motives underlying the actions of government officials:
The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship.
What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.
This kind of argument became popular in some conservative circles during the legal battle over President Trump’s travel ban, in which the administration used a thin veneer of national-security rationalizations to cloak religious discrimination.
The argument is nonetheless both weak, and fraught with dangerous implications if it were to be accepted by the courts. If judges cannot examine government motives, officials could severely undermine a wide range of important constitutional rights.
As Milad Emam of the libertarian public interest firm Institute for Justice points out, courts in fact routinely consider government motives in assessing a variety of constitutional claims:
[Barr] implied that “otherwise-lawful” actions are constitutional irrespective of governmental motive.
But the U.S. Supreme Court has, in fact, repeatedly held that the government’s motives often are relevant in determining whether its actions are constitutional. For example, in First Amendment cases, it is relevant whether the government has regulated speech “because of disagreement” with its message or whether regulation was “justified without reference to the [speech’s] content.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Speech restrictions that fall into the former category are presumptively unconstitutional. And, to figure out whether restrictions are in that category, the Supreme Court “look[s] to governmental motive.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228-29 (2015). (In Reed, the Supreme Court clarified that even where the government’s motive is innocent, speech restrictions that discriminate based on content are presumptively unconstitutional; but I digress.)
The Supreme Court scrutinizes governments’ motives for good reason. If it didn’t, federal and state governments could circumvent constitutional restraints by offering pretexts for their actions.
As Emam suggests, absent scrutiny of government motives, officials could repress opposition speech by using seemingly neutral restrictions to target political opponents. This is in fact a standard tactic of authoritarian governments, such as Vladimir Putin’s regime in Russia, which routinely targets opposition speech by selectively applying various supposedly neutral regulations that would never be used against regime supporters.
Freedom of speech is far from the only right that would be imperiled under Barr’s approach. The same goes for constitutional rights against government discrimination on the basis of race, ethnicity, and religion, a point I discussed here:
Defenders of President Trump’s travel ban executive order often make much of the fact that the plaintiffs’ attorney supposedly admitted it would be constitutional if another president did the same thing….
The case against the travel ban is a pretextual discrimination claim: that the official rationale for the order is actually a smoke-screen for an effort to discriminate against Muslims. The whole point of any pretextual discrimination claim is that an otherwise potentially constitutional action may be unconstitutional because of the illicit motive behind it. In any such case, there is always the possibility that the same policy would be legal if adopted for a different motive.
Consider a government agency that requires all job applicants to have a college degree in order to reduce the number of African-Americans eligible to apply. Given that motive, the employment policy would be unconstitutional. And that is true regardless of the fact that a college diploma requirement might be perfectly legal if adopted for a different purpose…..
There is good reason for courts to strike down seemingly neutral policies that are proven to have a discriminatory motive. Otherwise, the government would have a blank check to target unpopular racial, ethnic, and religious minorities, so long as the the law or executive order in question did not explicitly mention race, ethnicity, or religion. And there are many ways to target such groups without directly mentioning them. The government can easily find characteristics that strongly correlate with membership in the group and then disadvantage people who have that trait. That is exactly what the segregationist Jim Crow states tried to do in many situations where courts began to strike down explicit racial classifications.
Some may consider it pointless to strike down a policy that could potentially be reenacted for different reasons. But this overlooks the reality that many such policies are unlikely to be adopted in the first place if not for discriminatory purposes. Trump’s travel ban is an example of this very phenomenon.
To guard against such shenanigans, the Supreme Court has long held that facially neutral laws and regulations may be invalidated if the true purpose behind them is to discriminate on the basis of race, ethnicity, religion, or some other suspect classification. If facially neutral policies are exempt from scrutiny for discriminatory motive, then a wide range of prejudicial policies would have to be upheld. For example, many Jim Crow-era policies targeting African-Americans were facially neutral, including poll taxes and literacy tests intended to keep blacks from voting.
In determining whether discrimination was the motivation behind the challenged action, the Supreme Court requires judges to make “a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “[t]he historical background of the decision” and “[t]he specific sequence of events leading up to the challenged decision.”
Most conservatives are (justifiably) happy to support many such rulings outside the context of the Trump Administration. For example, conservative commentators cheered the Supreme Court’s ruling in the 2018 Masterpiece Cakeshop case, a 7-2 decision in which all five conservative justices voted to overturn a seemingly neutral state civil rights commission ruling holding that conservative Christian baker had violated state antidiscrimination laws, on the basis that two of the seven commissioners who made the decision had been motivated by bias against the baker’s religion. The evidence of unconstitutional motivation in that case, while substantial, was far less extensive than in the travel ban case.
As Masterpiece Cakeshop demonstrates, judicial review of government motives is needed to protect the rights of unpopular conservative minorities, as well as Muslims, left-wingers and others. If Bill Barr gets his way, theologically conservative Christians will be among those who have reason to regret it.
Most of the examples Barr cites to support his position actually do no such thing. For example, it is not true, as Barr suggests, that judicial motives are immune from legal scrutiny. If a judge’s ruling is tainted by an illegal motive, such as corruption or impermissible favoritism towards one of the parties, it can be set aside on that basis—even if it was otherwise based on defensible legal reasoning. In Caperton v. Massey (2009), the Supreme Court ruled that such a remedy is required even in cases where a conflict of interest creates a “serious risk of actual bias.”
Criminal convictions can be set aside if there is proof of “discriminatory intent” in jury selection—even if the government offers seemingly neutral justifications for its decisions, and the trial judge accepts them. Although Barr’s speech blames the left for those judicial doctrines he dislikes, this latter principle was most recently reaffirmed in a 7-2 Supreme Court decision authored by that notorious leftist Justice Brett Kavanaugh.
While the Supreme court ultimately upheld Trump’s travel ban, they did not do so on the basis that examination of governmental motives is impermissible. Instead, the majority ruled that the president deserves special deference on immigration policy that would not be accorded in other contexts. This double standard is wrong and should be abolished. But at least it does not grant government officials any blanket immunity from judicial scrutiny of their motives.
The recent gerrymandering decision also doesn’t help Barr’s case. In that ruling, the Supreme Court ruled that federal courts should stay out of disputes about political gerrymandering, not because judicial scrutiny of motives is impermissible, but because the whole issue of partisan gerrymandering is a nonjusticiable “political question”—regardless of whether the plaintiff’s case was based on the government’s motives or not. Federal courts do assess motives in cases involving racial gerrymandering.
Barr is right that the Supreme Court has held that a police officer’s decisions to arrest a suspect is immune from scrutiny of motive so long as he had “probable cause.” But that doctrine is badly misguided for reasons recently summarized by another notorious leftist: Justice Neil Gorsuch. This pernicious logic should not be extended to other areas of constitutional law.
Assessment of motives is not relevant in all constitutional claims. In many situations, a government policy is unconstitutional regardless of the motive. And, of course, some reprehensible motives are not illegal. But assessment of motive is essential in a wide range of situations, especially pretextual discrimination cases where seemingly neutral criteria can be used to mask targeting of groups on the basis of unconstitutional criteria such as race, ethnicity, religion, or political opinions.
In some cases, it can be difficult to determine what the government’s true motives were, especially in situations involving multiple decision-makers. Such line-drawing problems are common in a wide range of constitutional cases, and are far from unique to those involving motives. For reasons I summarized here, I think the Supreme Court’s current precedent dealing with such issues provides more than adequate protection against excessive invalidation of legitimate exercises of government power.
Still, there is room for legitimate disagreement over the question of what standards judges should apply in such cases. It will sometimes be difficult to strike the right balance between the risk of allowing the government to violate constitutional rights and the risk of invalidating legitimate uses of state power. But, whatever we might think of such line-drawing issues, we should reject Barr’s claim that government motives enjoy near-total immunity from judicial review. That theory is a menace to many of our most important constitutional rights.
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