Constitutional Law Blog Essay

Statements and Standards in Trump v. Hawaii

On Tuesday, the Supreme Court sided with the Trump Administration in Trump v. Hawaii, the challenge to the third iteration of the President’s travel ban. President Trump quickly characterized the decision as “a tremendous victory,” and in the Manichaean world the President seems to inhabit, it’s definitely a win. But the opinion itself—which leaves the door open to judicial consideration of both presidential statements and presidential animus—may be more mixed than the President’s reaction suggested.

A number of legal scholars have read the opinion as blessing discrimination of the basest sort, essentially recapitulating the errors of Korematsu in 2018. I don’t dispute that this is a possible reading of the opinion. But there’s another way to read it—one that should actually give a degree of comfort to anyone who believes in the importance of active judicial oversight of the executive branch.

First, the Proclamation under review in this case was the product of a successful series of challenges to earlier, broader, less process-laden versions of the policy. Courts blocked implementation of the first Executive Order and much of the second, forcing the Administration to go back to the drawing board to produce this Proclamation. It was only after receiving a clear message that the Administration could only act to restrict immigration following a process that involved real inter-agency consultation, and where the order was predicated on some genuine national-security need identified by executive-branch officials, that the Administration produced the policy under review.

Second, although the Court upheld the ban, it used a fairly searching type of review along the way. This more muscular form of rational-basis review may not have doomed the Proclamation in this case—but it sent a signal that the Court is willing to engage in genuine review of executive action, even when that action involves facially neutral programs and policies.

The Court began by describing some of the animus-laden presidential statements that formed a significant part of the plaintiffs’ constitutional case, and it conspicuously declined to lay down a rule that disavowed their potential relevance. The Court then appeared to conclude that the statements—or perhaps just a concession by the Solicitor General that as a general matter, offensive and denigrating statements might be of relevance to a court’s review of presidential action—gave it license to depart from the Mandel standard of review, under which a court asks only whether the executive has given a “facially legitimate and bona fide reason” for its action. Instead of Mandel, the Chief Justice explained that it would “look behind the face of the Proclamation to the extent of applying rational basis review.” And to illustrate the type of review it intended to conduct, the Court pointed to three cases in which it had struck down laws that were animated by a desire to hurt a politically unpopular group. All of those cases nominally employed rational basis review, but all invalidated the challenged policies on the grounds that they were tainted by animus.

In Department of Agriculture v. Moreno, the Court struck down a statutory provision that denied food stamp benefits to households composed of unrelated individuals; the Court  pointed to legislative history discussing “hippies” and “hippie communes,” and explained that “a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest”  In Cleburne v. Cleburne Living Center, Inc., the Court struck down a zoning ordinance that singled out group homes for the intellectually disabled and subjected them to special permit requirements. And in Romer v. Evans, the Court struck down a Colorado constitutional amendment that denied gays and lesbians access to antidiscrimination laws.

In each of these cases, the Court looked more closely than traditional rational basis review—which simply requires the government to come forward with any plausible justification, whether or not that justification was actually relied upon—would have dictated. The government in each case did offer some sort of justification: preventing food stamp fraud in Moreno; protecting the intellectually disabled residents of the proposed group home from harassment in Cleburne; disapproving “special rights” by “put[ting] gays and lesbians in the same position as all other persons” in Romer. Viewed through the deeply deferential lens of ordinary rational basis review, some of those explanations should have been sufficient. But in each case, the Court determined that animus undergirded the government conduct at issue and accordingly struck down the challenged laws.

These cases in many ways laid the foundation for the Court’s gay rights jurisprudence. Justice O’Connor’s concurrence in Lawrence v. Texas cited them as establishing that “When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review . . .” She was urging an equal protection theory not adopted by the majority, but her gloss on these cases was unquestionably correct. And both Windsor and Obergefell relied on Romer and Lawrence.

By citing these “rational-basis-plus” cases in Trump v. Hawaii, the majority opinion seemed to signal that animus can, under some circumstances, invalidate presidential action. And even to allow for that possibility in the context of presidential decisionmaking around “entry and national security” is a highly significant development.

When it came to actually applying this type of review, the Court did not squarely confront the President’s statements. But it did engage in a fairly detailed review of the process that preceded the issuance of the Proclamation. The Court described the vetting and information-sharing rationale offered in the text of the Proclamation. It pointed to the “worldwide” process undertaken by Cabinet officials, with specific descriptions of the rationales for certain inclusion and exclusion determinations. It highlighted decisions to remove particular countries from the coverage list. And it pointed to both the sizable nonimmigrant visa exceptions and the waiver program.

It’s hard to know how many of these features were essential to the Court’s decision that the Proclamation should be upheld; but this review was surely more probing than a facial one. And it’s true that the Court was merely assuming without squarely deciding that it could look behind the face of the order; the SG’s concession allowed it to sidestep the need to decide. But it seems clear that neither the first nor the second iteration of the travel ban would have satisfied the type of review the Court conducted here. If that’s right, the Court has implicitly condemned those orders with this decision. That, plus an explicit move to keep the door open to consider both presidential statements and animus even in core areas of presidential power, give reason to believe that in the future the Court may closely scrutinize the conduct of this Administration in the face of serious allegations of animus.