Equal Protection: Remedies for Segregation; Proving a Classification; Affirmative Action

Trump v. Hawaii (redux)

585 U.S. 667 (2018) · Westlaw

You read this case in Module 6 for the statute and for how much room the President has at the border. It comes back here for a different question, the one this Module is built around: how do you prove that a rule written in neutral words was adopted for a forbidden reason?

The claim was about religion, not race. The challengers sued under the Establishment Clause, not the Equal Protection Clause. But the problem of proof is the one you have been working on since Washington v. Davis. Proclamation No. 9645 restricted entry from seven countries. It never mentions religion, and the Chief Justice says so in Part IV–D: “The text says nothing about religion.” So the challengers had to show that the stated reason was not the real one.

Their evidence was the kind Arlington Heights tells you to gather. When a law is neutral on its face, Arlington Heights points you to its impact, its historical background, the sequence of events that led to it, departures from normal procedure, and the legislative or administrative history — “especially where there are contemporary statements by members of the decisionmaking body.” 429 U.S. at 266–268. The challengers had most of that. On impact, five of the seven countries have Muslim-majority populations. On sequence, two earlier executive orders had been enjoined before this one issued. And on statements, they had the President’s own words, before and after he took office, which the Court sets out at length in Part IV–B.

The Court did not ask the Arlington Heights question. It never asked whether hostility to a religion was a motivating factor. It said instead that “the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” Then it chose a standard of review under which the statements count for very little. At 704–705 it assumes it may look behind the face of the Proclamation, but only as far as rational-basis review allows, and it holds that it “will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds.”

Put that sentence next to footnote 21 of Arlington Heights. There, proof that a decision was “motivated in part by a racially discriminatory purpose” does not automatically invalidate it. But it does shift “to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered.” 429 U.S. at 270–271 n.21. So in a domestic case, strong evidence of a forbidden purpose moves the burden onto the government. In Trump v. Hawaii it moves nothing. The policy stands if a legitimate reason can reasonably be found for it, whatever else was in the room when it was made.

The impact argument gets an answer you have seen before. The Court meets the challengers’ number with another number. Five of seven countries are Muslim-majority, “[y]et that fact alone does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population.” Hold that against McCleskey, where a strong statistical disparity was not enough to prove that anyone in the defendant’s own case acted with a forbidden purpose.

Why the standard was so low. The Court’s reason is the subject matter, not the evidence. Admitting and excluding foreign nationals is, in the Court’s words, “a matter within the core of executive responsibility.” That is the Module 6 point, and it is what sets this case apart from Davis and Feeney. A zoning board or a state civil-service commission that made the same statements would be reviewed under Arlington Heights.

And the Korematsu paragraph, at 710. The Court says Korematsu “has nothing to do with this case.” In the same paragraph it declares that Korematsu “was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—‘has no place in law under the Constitution.’” Justice Sotomayor, dissenting with Justice Ginsburg, welcomes the overruling and then says the Court “redeploys the same dangerous logic underlying Korematsu and merely replaces one ‘gravely wrong’ decision with another.”

Three questions.

First, run the challengers’ evidence through Arlington Heights as if a city council had adopted the policy. Which of the factors would they satisfy? If the burden shifted, what would the government have to prove, and could it?

Second, the Court asks whether the policy “can reasonably be understood” to rest on a legitimate reason. Is that a test of the government’s actual purpose, or of whether a legitimate purpose could exist? If it is the second, can anything the decisionmaker says ever matter?

Third, the Court answers “five of seven countries” with “8% of the world’s Muslims.” Say what each number measures. Which of them tells you anything about why the policy was adopted?