Discrimination

Bill Barr is Wrong to Claim Courts Cannot Examine Government Motives

Assessment of motives is often an essential tool for protecting our constitutional rights.

|The Volokh Conspiracy |

Attorney General William Barr.

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.

NEXT: The Nation’s Biggest Dairy Is Failing Despite Relentless Government Intervention

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  1. Barr’s argument extends only to inquiries into the motives of the President and high officials answerable to him, not to all government actors, and has more to do with his belief that Article Two creates a presidency with prerogative powers, subject only to quadrennial elections and impeachment, that with the role of motive in general constitutional law. In Barr’s world, we elect a king for four years, clothed with divine rights, albeit divine rights emanating from a misguided view of the constitution rather than from god.

    1. You mean, a king with mundane rights that extend only and exactly as far as the Representatives of the People explicitly demanded, right?

      Those Representatives who are elected every other year, with a counter cyclical check on their excess to obstruct populists rising to sudden power? That king?

      It seems more like you disagree with the legislatures, but are instead directing your wrath at the executive for doing what the legislature asked him to do…… which was precisely the purpose in the legislative abandonment of so much to the executive.

      I’m this place, at least after hundreds of years, the founders were wrong. The legislature didn’t jealously guard its power, but cast it aside to avoid responsibility for their actions. When the executive does something their constituents like they claim it’s at their direction, and when it’s something they don’t like it’s because the executive is derelict in his duty. Somehow the People have let them get away with it.

      1. They have certainly done this with regards to the power to declare war. With Obama, the legislature ended a decades long slide from having the absolute and final authority to declare war, past an era of advice and consent and finally landed in a “head-in-the-sand, executive power is absolute and congress only reserves the right to complain about it after the fact” position.

    2. I would be curious to know whether and how much Barr sympathizes with some sort of monarchism. It’s not an unheard of position among very traditionalist Catholics. Although I doubt Trump is his ideal Catholic Monarch.

      1. This comment appears to trend into religious bigotry.

        1. I don’t think so. It’s no more bigoted than pointing out that US Evangelicals generally strongly support Trump although some can be liberal, that US Jews are generally liberal although some are very proud conservatives, or that the vast majority of US Catholics are politically diverse and tend to reject Church doctrine to the extent that it goes against their political beliefs.

          It’s simply pointing out that some political beliefs are associated with religious identification. Support for monarchism has been a feature of very traditionalist Catholicism. It’s probably a fringe position in the US, but it’s more prevalent in Europe (see support for Francoist Spain)

          You’re assuming it’s bigotry because you think monarchism is nefarious. But I doubt you call it bigotry when someone is associating a political stance to a religious group you don’t favor. Unless you’d like to detail all the times you charged bigotry to anyone discussing political beliefs in the Muslim world.

          1. Bigots never think their comments are bigoted.

            What makes it bigoted is you appear to ascribe Barr’s motives and political stances to his religion, as a subtle way to undermine the political stance. It essentially acts as a dog whistle. Rather than argue for or against a strong unitary executive theory, the dog whistle of “catholicism” and “monarchy” is brought in.

            It’s akin to someone arguing for a strong lending policy with solid interest laws, who happens to be Jewish. Then suddenly you bring in the historical Jewish connotation of how interest was needed, and was utilized to “abuse” the non-gentiles.

      2. Not just AG Barr. But a lot of Far Right Christians who’s only goal is to get far right conservative Supreme Court justices as well as the Federal Appeals Court Justices.

    3. Thought experiment: Assume Congress enacted welfare legislation with the express motive stated by the sponsors and supporters of the bill that it is their Christian duty to help those less unfortunate and in need. Should such otherwise neutral legislation be struck down as a violation of the Establishment Clause?

      1. And if you think that’s ok (perhaps because the legislators had no animus towards the targets of the law), then those same legislators pass very high income tax rates for the explicitly stated purpose that since Jesus said it’s harder to pass through the eye of needle than for a rich man to get into Heaven it’s their duty in serving their fellow man to ensure there are no rich men.

        What if it wasn’t because Jesus said so, but because it was their deeply held belief that it’s immoral, unethical, or and inequity for such richness when there are others with less?

        You know, I kinda like “we can overturn any law because of what we think the intent of the actor was.” I’ll just insist that it be applied everywhere, rather than selectively.

        1. I for one welcome the tearing up of our entire body of law. I doubt they’ll get very far, but godspeed.

      2. Competent people neither accept nor advance religion-based arguments in reasoned debate among adults, especially with respect to public affairs.

        People are entitled to believe as they wish. They are not entitled, however, to have superstition-based assertions accepted or respected in reasoned argument.

        Proposed legislation based on ‘god told me to do this’ (or ‘the tooth fairy told me not to do this’) is silly and wrong, regardless of whether the provision would afflict innocents or help the deserving. Law based on superstition is a marker for an education-deprived, backward jurisdiction; childhood indoctrination is no excuse.

        Similarly, bigotry is not improved by a claim of superstition.

        1. “God Almighty has set before me two great objects, the suppression of the Slave Trade and Reformation of Morals”
          -William Wilberforce

        2. All moral claims and viewpoints, if not based on God, are ultimately based on some type of feelings, emotions or “superstitions.” Pure scientific materialism offers no moral directives.

          1. If only there were systems of morality not based on religion!

          2. Utilitarians, consequentialists, and like nine other bodies of secular ethics canon would like a word with you.

            1. Sure, and that’s all well and good. But these systems of thought are all founded on intuition and a priori assertions about what is moral and good. None of it is based on the scientific method or anything like that.

                1. Agreed.

                  So, in my view, contrary to the exceedingly bigoted and destined loser Arthur, people are entitled to make claims about morality, including those which bear on legislation — regardless of whether they consider their moral viewpoints as originating from God or just their own opinion, or their animal instinct that evolved from mud as a survival mechanism, or.. aliens. You may not be entitled to be taken seriously or have your arguments accepted, but you may be entitled to presumptive respect.

                  The fact is, probably only 2-4% of the world’s population at most does not believe in any kind of deity, and while significantly more than that are not “religious”, apparently these types of beliefs are a common feature of human intuition and reasoning, and this general picture isn’t going to change any time soon if ever, so claims about morality that include attribution to some form of higher power as the source of morality will continue to be widely accepted and overwhelmingly mainstream (of course any particular claim or attribution may not be, but this general category is the norm).

                  The global picture is a lot different than the US or Europe of course. In the US now, a lot of less cerebral types will express sincere and mystical belief in some undefined concept of “karma.” Very common. Many others who call themselves atheist or agnostic will say they do think there is “something out there.”

              1. There are scientific arguments that altruism is a group (not individual) survival characteristic.

        3. The Rev’s reference to “competent people” can’t be taken seriously, since he doesn’t belong to that group.

      3. No, because the intent of the sponsors was to be good Christians, and that is not an Establishment Clause violation.
        Change it a bit: If their intent was to use the government’s power to force all Americans to be good Christians, then yes.

  2. Trump is Barr’s last chance for a Supreme Court appointment. It’s a very poor chance, but he’s giving it a try anyway.

    1. No. Barr is not motivated by the non-possibility of a Supreme Court appointment.

    2. Delusional, if you actually think AG Barr is angling for a SCOTUS appointment. POTUS Trump will not consider anyone for SCOTUS over 59. Won’t happen. He’ll look for someone in their late forties or early fifties, if possible.

      Put another way, Barr basically ‘aged-out’ of a SCOTUS job.

      1. I agree it’s all but impossible.

        Still, it’s hard to see why he persists in making a jackass of himself on Trump’s behalf, so I thought maybe he still held on to the fantasy.

      2. I agree with your conclusion but for different reasoning.

        Trump has an AG who’ll say whatever Trump wants him to say. So he’ll be AG until either A) he says something Trump didn’t want to hear, or B) Trump finds someone just as personally loyal to take over the DOJ, or C) President Next-in-line picks somebody else.

  3. “To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant.”

    Barr and the Supreme Court are wrong.

    If I remember that case correctly, the cops are allowed to make arrests motivated by the First-Amendment-protected expression of the suspect, so long as there’s probable cause.

    Or to put it another way, these are cases where the suspect can show that, if they had exercised their First Amendment rights differently, they would not have been arrested, but would have been permitted to go their merry way.

    So the cops witness a guy committing disorderly conduct, but since he’s written nice letters to the media about the police, they let the guy go. Then the next guy who commits disorderly conduct, they arrest because he criticized the police in the media.

    No matter how prestigious the Supreme Court and AG may be, this is not an OK state of affairs.

    The only issue in my mind is the issue of what *remedy* there should be for such a situation. If the courts can’t bring themselves to release a guilty suspect (even though he was targeted for his 1st Amendment activities), then they should correct the discrimination by ordering the cops to make arrests without regard to political affiliation or 1st Amendment activities. Thus, ignoring their buddy’s disorderly conduct for political reasons would be contempt of court going forward. Keep the order in place until the cops have been properly schooled in the 1st Amendment.

  4. What is behind Barr’s taking this position? He’s a pretty intelligent guy and a graduate of a good law school with lots of experience. He presumably is not one to make simple mistakes. Is the issue more debatable than it seems? Is he taking a position he doesn’t really believe in in order to defend Trump?

    1. Bill,
      It’s simple. Barr is now a whore. He used to be a man with some integrity. Some strength of character. And he spent decades building up that reputation. At some point, during the Trump presidency, he thought, “Hey, I can get a ton of power and also advance my own legal theories. All I have to do is whore my ethics and be willing to lie to the American people. Score!”

      That fact that his reputation is now permanently destroyed is, I think, a fair trade-off in Barr’s mind.

      1. This is not the whoring bit. This is actually extending his legal theory of a monarch executive.

        1. Trump wants somebody who isn’t himself to advance a theory that the President has monarchial characteristics. He kind of flailed about a bit trying to find someone who’d do it… turns out even the toadiest of toadies pull up short there… but he finally got a AG willing to say the stupidest things in order to curry favor. Kind of like the way it was briefly challenging to find someone willing to say torturing prisoners was the American way, back in the W administration.

    2. Maybe he thinks voters should have a say in government rather than courts being allowed to selectively alter any and every decision by any and every elected official because of some magic “wrong motive” analysis?

    3. “Is the position more debatable than it seems?”
      -Yes.

      “Is he taking a position he doesn’t really believe in in order to defend Trump”
      -No. Barr has had a long standing position that he believes in the Unitary Executive Theory, which holds that the US President possesses the power to control the entire executive branch. Basically a strong executive branch premise.

      Some odd theory which would overrule executive branch theories on a regular basis by theorizing about motive for every single decision would severely cripple the executive branch power.

      1. I think unitary executive theory is actually orthogonal to how powerful the executive is proposed to be; All it states is that all the executive branch’s authority is possessed by the President, (Not his underlings, who are only delegated it.), it really has nothing to say about how extensive that authority is.

        1. I don’t think it’s strictly orthogonal, but related.

          Under the unitary executive theory, the President can, for example, order investigations by the DoJ or FBI.

          Under a more distributed executive theory, the President can appoint the heads of the DoJ and FBI (subject to consent by the senate), but he cannot directly order an investigation. The AG or FBI head must order the investigation. If they defer doing so, the President may be able to fire them, but he still doesn’t have his investigation.

          The distribution of power weakens the power of the executive.

          1. No, the total power of the executive isn’t altered in your example, it’s merely distributed, but all the bits and pieces add up the same.

            Unitary executive theory doesn’t speak to how much power the executive has, but only who is entitled to exercise that power.

            1. That’s not exactly true. “Distributed” power, in practice, doesn’t add up to the a singular unitary executive power. In addition, it provides an additional dilution of the executive power via the need for the Senate to give Consent to the various leaders of the departments.

              Let’s simplify the example. Imagine two armies, of equal numerical strength. The first army is led by a single leader who controls all the decisions. His orders must be followed. The second army is led by a committee of several individuals, including a nominal “prime” leader. The prime can ask the committee members to do things, which they can do…or not. The prime can relieve the other committee members, but then must wait for a second committee to approve any new leader.

              In practice, the first army has more power than the second. It can make decisive movements.

        2. One person is more decisive with power and thus more effectively powerful than a group.

        3. Not all the executive branch’s authority, only its executive authority.
          Rulemaking, for example, can be reasonably argued to be a limited delegation by Congress of a legislative authority, and if they delegate it to an underling then it is possessed by that underling and not by the President.

      2. Unitary executive, which is basically self-evidently true, is actually not a strong executive branch premise.

        It is a weak administrative state premise, though. Essentially the premise is that there can be no “4th branch” bureaucracy.

        1. basically self-evidently true

          Haha, always the sign of a logical argument to follow.

          The Founders considered two co-Presidents, so worried were they about the follow-on effects of concentrating power in one person. And they would be self-evidently right.

          Though if you’re going to argue against the constitutionality of administrative agencies, you’re already barking at the moon, as well as mixing up ‘is’ with ‘ought.’

          1. The founders considered, and emphatically rejected, the idea of an executive ruled by a council. That sort of arrangement was in place in some of the colonies/states, and they found it to be not remotely desirable. You should really read up on some of the basic texts.

  5. President Trump wanted this kind of personal loyalty from all his appointments.
    This is a good idea of why appointments should be screened for loyalty to America and rule of law over loyalty to any individual man or party.

    1. How ghastly that he should want his AG to be his “wingman”; I wonder where he could have gotten the impression that was their job?

      1. Certainly not from Eric Holder, that faithful AG only loyal to America!

  6. ” If judges cannot examine government motives, officials could severely undermine a wide range of important constitutional rights.”

    But this is only because the judiciary wrongly permits constitutional rights to be violated if they think the government is acting out of good motives. The problem here isn’t the consideration of motives, it’s the courts treating absolute prohibitions as though they were mere suggestions.

    If the courts were to just enforce those constitutional rules, period, instead of giving the government a pass if it has a good reason for violating them, the courts wouldn’t have to inquire into reasons.

    1. “this is only because the judiciary wrongly permits constitutional rights to be violated if they think the government is acting out of good motives.”

      That’s not accurate. The judiciary gives LE a pass if they’re acting in a way they legitimately believe is lawful at the time, which is not at all the same thing. “Acting out of good motives” would cover about 98% of LE activity, since keeping is safe from criminals is a good motive… and LE would argue that every bad guy they get off the street is a net good, if that’s the bar they had to meet.

      1. I invite you to look at the definition of ‘strict scrutiny’ ; The ‘compelling state interest’ is the motive which the courts accept as licensing constitutional violations.

        1. Okay, cool. I assume you’re coming at this from a libertarian kind of angle where you think the courts allow LE to get away with too much. I’m with you.

          Let’s say the courts enforced the “should be unconstitutional” stuff to your satisfaction, isn’t the motive thing yet another good check on government authority?

          1. Maybe I should have said: if they enforced the “should ALWAYS be unconstitutional” stuff to your satisfaction.

            1. No, it becomes more of an increase in judicial authority, where judges are the least democratic part of the government.

        2. A “compelling interest” and a “good motive” aren’t even close to the same thing. Is English your second language, or third?

          1. “A “compelling interest” and a “good motive” aren’t even close to the same thing.”

            What’s the difference, with respect to the way strict scrutiny is currently applied?

            1. Objective test vs. subjective test.

              1. You’re going to have to explain that one, to me at least.

                I objectively believe (based on observations x, y, z) that Trump did not subjectively believe that banning immigration from the countries his immediate predecessor identified as being unwilling or unable to corporate with US immigration was in his subjective view of the national interest?

                I objectively determine that saying things your school doesn’t like, which are physically impossible but would be illegal if possible, at a public event that your school just so happened to advocate attendance to is not a violation of the first amendment because prohibiting speech is not an infringement how? (Bong hits for Jesus, in case it wasn’t obvious)

                Brett isn’t talking about qualified immunity – there at least I understand how it’s to work in theory – even though I don’t think it’s applied that way. But with legislation what’s the objective vs subjective line? Everything is subjective – I think it’s a good idea to do xxxxxx because of reason yyyyyyy. If xxxxxx is permissible, argues Brett, then yyyyyy is immaterial. And if xxxxxx is impermissible, no yyyyy can save it.

                1. Exactly.

                  My complaint is that the courts are treating all the clauses of the Constitution as though they had an invisible, “Unless there’s a really good reason to do otherwise.” addendum.

                  Congress shall make no law … unless it serves a compelling interest.

                  The right of the people to KABA shall not be infringed… unless it serves a compelling interest.

                  No soldier shall, in time of peace, be quartered in any house without the consent of the owner… unless it serves a compelling interest.

                  1. Objective is the Court determining on it’s own account (or the account of a ‘reasonable actor.’

                    Subjective requires evidence of the state of mind of the individual in question.

                    If you drink deep of legal realism you can conflate the two, but then your objection isn’t this particular doctrine, it’s the judiciary in general. Which returns us to executive expansionism.

                    1. So, objective is the Court deciding chocolate tastes good, and subjective is the Court deciding YOU think chocolate tastes good?

                    2. You have it Brett.

                      Thus, motive is a subjective test since it is about the mind of an actor other than the Court, whereas strict scrutiny is an objective test, since it is about the Court evaluating the act itself.

                    3. If that’s it, then it’s crazy: Whether you like chocolate or vanilla is the very definition of subjective.

                      Basically, what is going on here is that the judiciary are abandoning their job of determining if policy is permissible under the law and Constitution, in favor of determining whether it is desirable, (A task assigned to the elected branches!) by the expedient of making whether policy is desirable, (Whether it addresses compelling needs, for instance.) a component of the “permissible” analysis.

                    4. But whether something passes strict scrutiny is objective.

                      What’s going on here is you have a bone to pick with the judiciary, and are trying to blame long-held legal doctrines to pretend it’s got more to it than partisan judge-blaming.

                      Partisan carping, I might add, that is soon to fall by the way-side as conservative judicial activism comes into vogue.

  7. Wouldn’t it be nice if President Trump’s supporters put curbs on these excessive claims of executive prerogative – and did it in such a way that Presidents who *aren’t* named Trump would be deprived of those improper prerogatives as well!

    1. Opponents, not supporters. But it would be nice his supporters provided him some loving correction.

      But to put things in perspective, this sort of executive usurpation and team loyalty didn’t start with Trump.

      1. “this sort of executive usurpation and team loyalty didn’t start with Trump.”

        Be nice if it ended with him, though, wouldn’t it?

        1. I believe that’s what I suggested.

          1. You’re choosing to argue with me?

            1. Keep your pants on, I was agreeing with you.

    2. You know who could actually do that? Congress.

      1. And you know who no one would trust to keep its word that it would apply the same standard to the next president?

        Congress.

        And if you think it’s the Demonrats who won’t uphold the standard with their guy, just remember that they think the same about the Rethuglicans. After all, my guy is working for the betterment of the country, while your guy is just pandering and profiteering.

        1. I meant Congress could do it by passing laws with specific language that only empowers the executive branch to do specific things and denies the use of funds for other things.

          1. No, doing it that way is inadmissible, because,

            1. It would result in Congress being held responsible if things went wrong.

            and,

            2. (Redundant in light of #1.) it would constrain Presidents of the same party from doing things Congress wants, but doesn’t want to be blamed for.

  8. Barr did not say that motive should never be inquired into. He said “with very few exceptions.” This has been the rule from the very beginning in order to avoid “judicial legislation,” which is the process by which a litigant who is unhappy with the result he has achieved under majoritarian legislative politics takes the matter to the courts for another try at getting his or her desired policy outcome.

    If the majority of the Legislature be corrupted, it may well be doubted whether it be within the Province of the judiciary to control their conduct, and if less than a majority act from impure motives, the principle by which judicial interference would be regulated is not clearly discerned. John Marshall in Fletcher v. Peck

    In times of political passion, dishonest or vindictive motives are readily attributed to legislative conduct and as readily believed. Courts are not the place for such controversies. Felix Frankfurter in Tenney v. Brandhove

    So long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power. …”It is, of course, true,” as was said in McCray v. United States,… “that, if there be no authority in the judiciary to restrain a lawful exercise of power by another department of the government, where a wrong motive or purpose has impelled to the exertion of the power, that abuses of a power conferred may be temporarily effectual. The remedy for this, however, lies, not in the abuse by the judicial authority of its functions, but in the people, upon whom, after all, under our institutions, reliance must be placed for the correction of abuses committed in the exercise of a lawful power.” Barenblatt v. United States

    Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons. Palmer v. Thompson

    1. ” the process by which a litigant who is unhappy with the result he has achieved under majoritarian legislative politics takes the matter to the courts for another try at getting his or her desired policy outcome.”

      They’re co-equal branches. Separation of powers is designed to work by pitting the different branches of government in opposition to each other. The courts (wisely) prefer to keep to the sidelines, but there’s no reason they have to stay there.

      1. Yeah, the lack of a limiting factor to this reasoning is telling.

    2. This is my reading as well.

  9. You know who else undermined constitutional rights? (Oh geeze, THIS should be a LONG thread)

    1. Volokh posters and regular Reason posters don’t have that much overlap

  10. I would say “it depends.” I would agree that motive is sometimes highly relevant. Nixon secretedly negotiated with the Chinese to pivot US policy away from being anti-Chinese, but this is generally regarded as a legitimate foreign policy initiative, right or wrong but legitimate.

    In general, my greatest difficulty with motives has been when Supreme Court justices attribute negative motives to adherents of positions they personally disfavor. Calhoun famously believed no rational person could oppose slavery, and opposition to slavery could only be based entirely on animosity and hate.

    My difficulty is with the Supreme Court’s recent tendency to adopt John Calhoun’s reasoning. In my view, if postions have been discussed by philosophers for thousands of years, as slavery has but also subjects such as abortion, position of non-citizens, sexual mores and more have been, it is not open to the Supreme Court to adapt John Calhoun’s position and say, as a matter of pure fiat. that the position they disagree with Is entirely without reason and based solely on hate.

  11. swood1000 makes the point quite well above. Avoidance of the analysis of motive is designed to avoid judicial legislation, whereby otherwise perfectly constitutional laws and actions are challenged based on the potential “motive” of the president or legislature. Any action which affected people of one religion or one race potentially preferentially over another would be challenged base on the “motive” of the legislature or executive branch.

    For example, Want to raise taxes? That’s going to affect one race slightly more than another race, based on income group distributions. Is that motivated by the legislature’s or president’s “discriminatory motive”? Who knows? But sue, just to find out. And delay the law. And maybe succeed.

    Want to lower taxes? Again, discriminatory motive. Same case.

    Just about any executive action or case will be sued about.

  12. I disagree with Barr as far as the courts can strike an otherwise lawful act if it’s shown that there was an unlawful motive. But unseemly motives, or even motives that do not advance a legitimate government purpose should be beyond the courts purview.

    Take for instance the current back and forth about the appointment of a Senator for the vacancy in Georgia. Obviously Gov. Kemp and Trump are sparring about which nominee will help them the most politically, which is not a legitimate government interest, but certainly a given for filling a political office. What would be an unlawful interest subject to court review, as shown by Gov. Blagojevich, is leveraging the appointment for payments to a political campaign or personal enrichment.

    1. What exactly is an “unlawful motive” though? Thoughts are typically not criminalized. Actions are.

      In your example, Blagojevich did an action, in response to a second action. Not quite the same.

  13. Did you really think the Supreme Court was going to take away Congress’ and the President’s power to grant or deny visas because Trump said mean things during the campaign?

    The result would be courts routinely second-guessing elections, seizing power from elected officials whenever the court might find fault with a campaign utterance. It would be the end of elected government in the US.

    And then what was the court going to do about travel visas? Start handing out travel visas themselves? Make up specific rules covering visas, as if writing visa rules were a legitimate court function? Order congress to pass a new visa law with court-approved language?

    The court ruled wrongly in Masterpiece Cakeshop as they have consistently ruled wrongly on so many cases. Masterpiece, and anyone else, should be free to decline any work at any time by citing the 13th Amendment. The long history of wrong decisions on involuntary labor creates a foundation for numerous other badly or inconsistently reasoned decisions.

    Whenever the court is looking at motives, you’ll probably find some underlying failure by a previous court.

    1. “ Masterpiece, and anyone else, should be free to decline any work at any time by citing the 13th Amendment.”

      Does that mean that a company can decline to comply on 13th Amendment grounds with health or building codes because that’s work they don’t want to do that government is requiring of them?

      1. It neither means that nor means the opposite of that. That’s an entirely unrelated matter.

        The Masterpiece cake is a specific, custom job that would not otherwise be created. It’s not just a cake — cakes are readily available for purchase — it’s a specific made-to-order cake. It is not needed for health or safety or any other public purpose. It’s not a close call or a justifiable exception. The only reason it’s not involuntary servitude is that the court decided the 13th Amendment is meaningless in almost every case, regardless of the words in the text, and denied Americans the Amendments’ protection.

        Masterpiece and other similar cases could be very simple. The court is not comfortable with unlimited compelled servitude against deeply held beliefs. The court’s intention to continue to allow compelled servitude in many situations leads it to these inconsistent rulings.

        1. Exactly. The Court doesn’t want to fully enforce the 13th amendment, because it has allowed too many exceptions, often in the name of fighting social wrongs, and is seriously averse to upsetting apple carts it has loaded itself.

          But this is the exactly crux of the matter: Civil rights laws, when they made the jump to giving out positive rights to others’ service, began to actually violate civil rights, not effectuate them. At this point they’re actually a greater source of rights violations than they are a defense of rights.

  14. Bill Barr could probably sell out a comedy club based on his name alone.

    1. Not everyone gets a great name — such as Dangerously, or Vermin — Mr. Moronie.

      1. Everyone has you to name-call them.

  15. What is the limiting principle on this bad motives analysis? What constrains courts from doing anything based on deciding they don’t like (what they think are) someone’s motives?

    What if it’s Congress’s motives? Can they look up the vote count and if the bill passed by 3 votes, overturn it if they find 4 representatives had bad motives? What if some congressmen had bad motives on both sides of the vote?

    1. You don’t understand the issue here. This isn’t about some new overatching doctrine that if the Court doesn’t like the motives it’s unconstitutional – it’s about the many constitutional review doctrines that currently take motive into account.

      1. Nobody said it was a new doctrine, just that it’s being resorted to even more often with Trump.

        1. As Ben describes it, it’s not something the Court has done before.

          1. What keeps them from doing it? Would it be wrong, as Barr says it would, or would it be cool as long as it works out the right way as is the usual left/Dem/progressive approach to these questions?

          2. Sarcastro, ben doesn’t describe it at all. In any way. Not even a little.

            1. What is the limiting principle on this bad motives analysis?

              1. There is no such thing as bad motives analysis.

              2. Also check below, Careless – that is indeed what he’s talking about.

        2. Maybe because he is very blunt and open about his motives?

      2. And you didn’t address the point at all.

        1. Because you’re not even wrong. You’re addressing some strawman bad motives doctrine you’ve made up.

          1. So there’s no limiting principle.

            1. You’re not even wrong – there is not even a sweeping ‘bad motives’ doctrine to have a limiting principle.

                1. We should deal with what the law is, not what the law might one day be.

                  1. I will remember that the next time someone asks some dumb hypothetical.

                    It would still be nice if you guys would adopt positions with limiting principles rather than always going with “the ends justify the means” combined with wielding arbitrary power against people is fun and profitable so it’s awesome we conveniently have a way to justify it.

                    1. Limiting principles are inherent in each legal test that uses motive as an element.

                      Looking for a universal commonality among them is not the right question to ask.

                    2. That’s like saying that subtraction is inherent in addition. Sure, with further assumptions included.

                      But what are the further assumptions that limit this sort of “otherwise legitimate powers can’t be exercised if a random judge somewhere thinks the exercise is motivated by animus” principle, for instance?

                    3. There is no overarching ‘otherwise legitimate powers can’t be exercised if a random judge somewhere thinks the exercise is motivated by animus’ doctrine, Brett. We just learned that in the Muslim ban case.

                      We do see motives analyzed in individual areas of caselaw – Establishment Clause, for in stance. Looking wider is picking a fight about nothing real.

  16. Ward v Rock doesn’t appear to authorize inquiring into official’s motives, just the asserted purpose: “A regulation that serves purposes unrelated to the content of expression is deemed neutral…”

  17. “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.”

    The terrible travel ban illustrates the problem

    1. Oops. The travel ban, which is terrible policy, illustrates the problem with trying to ascertain officials’ motives:

      Trump: Let’s keep the Muslims out. They’re terrorists!

      Trump’s Lawyers: Um, sir, you can’t keep people of a particular religion out just because you believe that they’re terrorists.

      Trump: Fine. Find a different way to figure out who’s a terrorist.

      Is that a pretext to violate the constitution, or is it complying with the constitution? Trump’s purported purpose was legit.

      1. The problem with this, is you’re assessing motive a priori, and using the assessment of motive to legally impede an otherwise lawful policy, with a diversity of religions (one Catholic, one atheist, and 5 Muslim countries) all being assessed under a single “motive.”

        Now, what if instead, you said “Obama has an anti-Christian bias, and that’s why he passed Obamacare, so he could attempt to eliminate religion”. And then use that as a motive to get an injunction against the entire policy.

  18. I agree. A categorical ban of considering motive makes no sense in assessing government action. The Constitution should not be rendered a dead-letter through pretext and artifice.

    1. The Constitution has gone a long way towards being rendered a dead letter, though the pretext and artifice of permitting actions contrary to it, if they are supposed to have good motives, and prohibiting actions consistent with it, if they’re are supposed to have bad motives.

      “Compelling interest” and “animus”; The one courts cite to license violations they approve of, and the other courts cite to prohibit constitutional actions they dislike.

  19. I take it the mere rational basis test is dead now?

    We didn’t mean that!

    Oh well, one can dream.

    1. “Rational basis” isn’t anything more than “not gibbering insanity” basis, anyway. They’ve never required that the law actually be rational, only that somebody who wasn’t chewing on the furniture might think it rational.

  20. Suppose Roosevelt agreed to fight in Europe first and then Japan, or agreed to invade Italy before France?

    Could “animosity” jurisprudence be used to challenge it?

    A position that one country is a greater threat to the United States than another and/or “deserves” to be attacked first could easily be characterized as an animosity argument.

    1. So while I agree with Professor Somin that government and government official motives are hardly irrelevant to judicial decision making, my agreement is qualified. There really are matters that are plenary discretionary decisions beyond the power of the courts to question, and where any wrong decisions have to be rectified by the voters, and even if criminal only by a congressional impeachment.

  21. This mischaracterizes Barr’s comments. He was more talking about it is not the role of judges to sit as a super-legislative body and try to engage in “tea leaf reading” exercises to dry to divine the “real” intents of government officials. I tend to agree with that approach to a degree. If federal judges are given limitless power to try to figure out what Congress really meant to do every time it passed a law you are basically allowing a handful of lifetime appointed judges to make the law.

  22. The argument is nonetheless both weak, and fraught with dangerous implications if it were to be accepted by the courts

    Not as dangerous as the implications of making intent a crime.

    which the administration used a thin veneer of national-security rationalizations to cloak religious discrimination

    Utter b.s.

    1. Intent alone isn’t a crime in any of these doctrines.

      1. If intent makes the difference between a legal action and an illegal action then, yes, intent per se is the crime.

        1. Your logic is wrong.

          By that logic, because a car’s motor is a the difference between a car and a hunk of junk, then all car motors are cars.

  23. “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.”

    Who isn’t down with that? This is the most brilliant idea I’ve read in quite some time. Keep crack cocaine out of government. This is sound policy.

    1. Not sure if serious.

  24. Given that Trump is known racist, then anything he does can be shown motivated by racism, and thus unconstitutional.

    Somin nees to confront this equation, which has dominated the resistance rulings of the Judiciary, particularly those with which Somin agrees.

    1. I like the condemnation of sweeping animus as applied to Trump, followed by the application of exactly that reasoning as applied to all judges who rule as Trump would not wish them to.

      1. I’m not sure how to parse the comment.

        But it’s not symmetric.

        The resistance rulings have presumed Trump to be ill motivated, rather than providing evidence. Such evidence is in short supply.

        1. You are without evidence presuming the same thing about the motive behind ‘the resistance rulings’ as you are accusing those rulings of doing.

          1. You are without evidence presuming the same thing about the motive behind ‘the resistance rulings’ as you are accusing those rulings of doing.

            But dwshelf is just describing an observation and expressing an opinion. He is not invalidating legislation because he thinks it represents flawed public policy.

            1. The judges aren’t doing that either, is the thing.

              1. In the travel ban case the Supreme Court said:

                More fundamentally, plaintiffs and the dissent challenge the entry suspension based on their perception of its effectiveness and wisdom. They suggest that the policy is overbroad and does little to serve national security interests.

                Here the court is saying that, in part, the dissenting justices wish to invalidate both the President’s action and the congressional statute authorizing it because of their perception of its effectiveness and wisdom. Effectiveness and wisdom describe whether or not a policy is flawed, right? Or am I misreading?

                1. You elided ‘overbroad’ there.

                  And rational basis is hardly acting as a legislature – the test is not ‘is this flawed public policy.’ ‘Does little to serve national security interest’ is not an efficacy question.

                  1. Do you agree that according to the Supreme Court majority, the dissenting justices would hold for the plaintiffs in part because of their perception of the effectiveness and wisdom of the president’s action?

                    1. Sure – but dicta like that is not proof that the Court acts as a legislature.

                      Moreover, it’s certainly not proof lower courts are making rulings based on animus against Trump.

                    2. Sure – but dicta like that is not proof that the Court acts as a legislature.

                      Then let me revise my original statement:

                      But dwshelf is just describing an observation and expressing an opinion. He is not invalidating legislation because he thinks the action being taken is ineffective and unwise, which is how the Supreme Court describes the approach of some federal judges.

                    3. Now you’re just being dumb.

                      Dude has a dumb double standard. The Supreme Court arguing with itself is irrelevant to that opinion. It also isn’t probative about what lower courts are actually doing.

          2. So now the standard is prove your innocence of these bad thoughts to our satisfaction instead of provide a rational reasoning for this action? Seems quite the change.

            1. Happy to report no one is saying that.

  25. Bill Barr is nothing but a partisan fixer. A guy who charades as someone of character but is fully devoid of it.

    The sooner he himself is impeached or resigns, the better. He is wholly unfit to serve in government. But hey, that’s the calling card of the Trump administration.

  26. 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

    Is there a rational basis for adopting the rule? Then is should be permissible, regardless of intent.

    But apparently, people like Somin like to switch between different criteria based on what political objectives they want to accomplish.

    1. Funny of you to blame Prof. Somin. He’s being descriptive – the Supreme Court does this. See The Church of Lukumi Babalu Aye, or any number of cases about pretext.

  27. It is one thing to find a prosecutor’s peremptory challenges to be based on prejudice; it is another for the judiciary to invalidate the actions of a co-equal branch of the federal government on the ground of an evil motive.

    Can anyone name a single case in the modern era in which the Supreme Court has held unconstitutional a congressional or presidential action on the ground that it was permissible except for its invidious motivation?

    1. The Church of Lukumi Babalu Aye (1993),

      1. Note that there is no doctrine privileging federal action when it comes to judicial review with respect to the Bill of Rights.

        1. Note that there is no doctrine privileging federal action when it comes to judicial review with respect to the Bill of Rights.

          But the travel ban case was alleged to be in violation of part of the Bill of Rights and the Supreme Court said that a judicial examination of the “real” governmental motives were impermissible, in part because it was in the area of international affairs and national security, in part because Congress unambiguously gave the President a free hand.

          “The sole prerequisite set forth in §1182(f) is that the President “find[]” that the entry of the covered aliens “would be detrimental to the interests of the United States.” The President has undoubtedly fulfilled that requirement here.” …

          “Moreover, plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere. “Whether the President’s chosen method” of addressing perceived risks is justified from a policy perspective is “irrelevant to the scope of his [§1182(f)] authority.” …And when the President adopts “a preventive measure . . . in the context of international affairs and national security,” he is “not required to conclusively link all of the pieces in the puzzle before [courts] grant weight to [his] empirical conclusions.””

          1. I see nothing privileging federal government action above state government action.

            1. I see nothing privileging federal government action above state government action.

              Is this related to your point that “there is no doctrine privileging federal action when it comes to judicial review with respect to the Bill of Rights”? Please clarify.

              With respect to federal versus state action, see Article IV of the Constitution:

              This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

              My original question concerned the federal judiciary’s interaction with congressional or presidential actions.

              1. The Supremacy Clause has never been held to create a different standard of review for state action and federal action under the Bill of Rights.

                Thus, the federal judiciary’s interaction with congressional action is the same as for state or municipal action under the Establishment Clause.

                And in Lakumi, motive explicitly mattered.

                Thus, your challenge has been met.

      2. The Church of Lukumi Babalu Aye (1993)

        That was a municipal ordinance, not an act of congress. Also, I don’t see where the motive of the legislators was an issue. The court held that the law was broader and more intrusive into the religious practices than it needed to be in order to achieve its stated ends.

        1. Also, I don’t see where the motive of the legislators was an issue.

          On second read, the court did find that the motivation behind the ordinance was to single out one religious group for discriminatory treatment.

        2. Municipal, federal, state – all are judged by the same standard under the Establishment Clause.

          1. Municipal, federal, state – all are judged by the same standard under the Establishment Clause.

            But perhaps the federal judiciary’s authority over a municipal legislature and it’s authority over Congress are analyzed differently. For one thing, a municipal legislature is not referred to as a co-equal branch of government vis-à-vis the federal judiciary.

            1. This is not the case. Once a right has been incorporated under the 14th, the mechanism of judicial review applies equally across the board to all government action at all levels.

              1. Once a right has been incorporated under the 14th, the mechanism of judicial review applies equally across the board to all government action at all levels.

                In the Trump travel ban case the Supreme Court said that a judicial attempt to uncover the “real” governmental motive was impermissible. If, as you say, the mechanism of judicial review applies equally across the board to all government action at all levels, then any judicial attempt to uncover the “real” motive of an action taken by a municipal government is equally impermissible. Is that your position?

                1. No, no no.
                  Immigration is a fundamentally different area of law from the Establishment Clause. The analysis of one area cannot be applied to another. Animus analysis does not apply to the first, but does apply to the second.

                  This is why your original challenge was overbroad, and easily answered.

                  1. No, no no.
                    Immigration is a fundamentally different area of law from the Establishment Clause.

                    And the president has fundamentally different authority and powers than any other defendant, making lawsuits against him unique in very many cases, no?

                    1. No. No man is above the law.

                      You’ve moved from ‘Can anyone name a single case in the modern era in which the Supreme Court has held unconstitutional a congressional or presidential action on the ground that it was permissible except for its invidious motivation?’ to arguing for new doctrine that exempts the President from motivation analysis. That’s some monarchy right there.

    2. Perhaps an example of the Supreme Court holding unconstitutional a congressional action on the ground that it was permissible except for its invidious motivation was in United States Department of Agriculture v. Moreno, where the Court invalidated an amendment to the Food Stamp Act that denied benefits to households made up of unrelated individuals. The Court found that the actual purpose of the law was to keep “hippie communes” out of the Food Stamp Program, and this purpose was held to be impermissible, despite the fact that Congress could have adopted this amendment in order to minimize fraud in the administration of the Food Stamp Program on the theory that requiring individuals to be related guarantees that the household did not come into existence solely for the purpose of collecting food stamps – thus preventing fraud.

      Also, of course, in the recent census case the court examined the motivations of the Secretary of Commerce and held the stated reasons for his actions to be “pretextual.” Justice Alito replied: “To put the point bluntly, the Federal Judiciary has no authority to stick its nose into the question whether it is good policy to include a citizenship question on the census or whether the reasons given by Secretary Ross for that decision were his only reasons or his real reasons.”

      1. Which underlines a major problem with both the judiciary and our view of federal power.

        For the first, the judiciary clearly views itself as a super-legislature, providing the ultimate wisdom of right and wrong in the implementation of policy. This is counter to the entire structure of the federal government as a government of laws rather than a government of men.

        And for the second – we should always look at a power granted to the government through the lens of “how can this power be misused by someone I disagree with?”. If every voter and legislator would view things through this prism, our government would rather quickly shrink to the smallest size necessary to provide the basic functions we require of government.

  28. As Ilya points out, Barr’s point about partisan gerrymandering doesn’t really support his conclusion, because whether something is justiciable is not the same question as whether we can inquire into motive. The fact that racial gerrymandering is illegal not only counts against Barr’s conclusion, but basically makes the entire gerrymandering issue count against him. In evaluating a complaint alleging gerrymandering, the district court will have to decide whether it alleges racial or partisan gerrymandering. In doing so, it will necessarily have to inquire into alleged motive; if one motive (partisanship) is alleged, that doesn’t mean the action is constitutional, it just means that the court can’t even answer the question whether it is constitutional. If a racial motive is alleged, then (all other things being properly alleged), the court will have to allow the plaintiff to conduct discovery that is reasonable under the circumstances, largely to determine motive. You just can’t have a gerrymandering case without an inquiry into motive, but you certainly can have a gerrymandering case, so you certainly can have cases where motive of government actors is essential.

    TL;DR: Barr is just making stuff up

    1. On issues of race, the courts have consistently ruled that it is the outcome that is important – if something has a racially disparate impact, motive is not relevant.

      1. This is not true – motive is relevant but not determinative.

  29. (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.)

    Which means that this entire example is irrelevant. Motive is irrelevant – only the action of regulating speech on the basis of content. So despite framing it as an argument against Barr, this example is actually a strong argument in favor of Barr’s position.

  30. Examining “motives” is a way for the courts to grab power and employ double standards untethered from pesky rigid legal requirements.

    Obviously, it’s difficult to outlaw with specificity whatever “discrimination” you don’t like — so you look to the thoughtcrime behind it. That way you don’t have to actually define the conduct that is supposedly unlawful.

    As Scalia noted in the context of the First Amendment, “The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: “Congress shall make no law . . . prohibiting the free exercise [of religion]. . . .” This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Council set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to “prohibi[t] the free exercise” of religion. Nor, in my view, does it matter that a legislature consists entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for special burdens. Had the ordinances here been passed with no motive on the part of any councilman except the ardent desire to prevent cruelty to animals (as might in fact have been the case), they would nonetheless be invalid.” The same reasoning would seem to apply to executive actions.

    “the administration used a thin veneer of national-security rationalizations to cloak religious discrimination.”

    This is a false choice. In theory, it is possible to have a certain violent “religious” and political ideology which is a national security threat. And in practice, we have faced exactly that.

    But setting that aside, the point is, a government action either “prohibits the free exercise of religion,” or it doesn’t. Perhaps conjecture and evidence about motives can be probative in some instances, but ultimately you can intend to do something unconstitutional and fail, or not intend to and still do so.

    1. Scalia’s was not the controlling opinion.

      If you’re arguing how the law ought to be, go ahead. But that’s not what Barr is saying.

      Also, you seem to be arguing for a ban on [I presume Islam] for national security reasons?

      1. I think you presume incorrectly.

        It sounded to me like he was arguing that you cannot prohibit the federal government from examining or even restricting the movement of individuals based on their association with a political group that has a violent history and stated violent intent, regardless of the religious associations of that group.

        A specific example from history would be the IRA – a group with both nationalist and religious roots, but also an ideology of action rooted in violence.

        1. I wonder what ideology he’s talking about with his “religious” scare quotes, because it’s not the IRA:

          it is possible to have a certain violent “religious” and political ideology which is a national security threat. And in practice, we have faced exactly that.

          1. The scare quotes are because the meaning seems to be in question. As I noted below, the beliefs of ISIS are a fully “religious” ideology. Yet we have targeted its adherents for extermination. You might say it is a political ideology, but it seems to be fully political and fully religious at the same time. As far as I can tell, we don’t seem to be recognizing any distinction between the two, but perhaps strictly in the context of the First Amendment, you would like to argue the case for such a distinction. I would welcome that.

            1. I’ll give you that ISIS is a religion.

              The larger ban on terrorists would seem to apply to ISIS without needing to target it or having a particular animus, so I don’t understand what you’re trying to argue.

      2. Per Barr and Scalia, and as swood1000 described above, the Court does in fact have a long tradition of generally avoiding inquiries into the subjective motives of the other branches, since such inquiries are generally irrelevant and political.

        On the second point – Did you know we have been at war with ISIS? The beliefs of ISIS are a fully “religious” ideology. So we have been engaged in a religious war against a religion and its adherents to kill all of them. Is that “religious discrimination”?

        My point here is not to argue the travel ban, but to point out that Somin’s dichotomy is a false one.

        1. Per the OP, your broad generalization is not true.

          And as a lawyer, I know you learned that’s not true in Con Law.

          Good lord, Trump has rotted your brain.

          1. It is true, actually. Read up on it. As usual, Ilya Somin is unhinged when it comes to legal analysis that touches on his fervent advocacy of open borders. Not even a semblance or pretense of the disinterested academic that even the most partisan scholars usually maintain.

            1. So you didn’t read the OP.

              And you forgot law school.

          2. I took conlaw and admin law while Obama was President, and formed my opinion/learned the original meaning re the unitary executive at that time. From some of the most prominent authorities on the topic. Your partisan blather has become even duller, Trump has rotted your brain.

            1. Formed you opinion/learned the truth, eh?

              Conflating the two like that is a clue you’ve got the brain worms.

              As another sign, you’re arguing that the law is what you want the law to be. Sorry, but the unitary executive isn’t adopted by the Court, and legislative motives still matter.

  31. They’re all scammers.
    No Treason
    The Constitution of No Authority
    by Lysander Spooner

    I.
    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
    We, the people of the United States (that is, the people THEN EXISTING in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.
    It is plain, in the first place, that this language, AS AN AGREEMENT, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.

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