Outstanding piece by Richard Primus about the oral arguments in the Muslim ban case:
The idea that either set of magic words wipes the slate clean—that the oath of office creates the President’s motives anew, or that a recantation now would do so—is either a remarkably naïve way of thinking or else a willing embrace of fictions. Given the intelligence of the lawyers who argued this morning, the latter seems more likely. And the embrace of fictions cannot possibly be a good way to assess a government official’s actual motives. This isn’t complicated: if your job is to make sure I don’t act for prohibited reasons, you shouldn’t take my word for it when I say that I’m acting for a permitted reason. More generally, the question of what motivates a person to take some particular action isn’t sensibly answered by asking whether he said some set of magic words. It’s better answered—fallibly, to be sure, but better—by looking at the whole picture and coming to some common-sense view of why he did what he did.
That means that the right answer to the question of whether the President’s pre-inaugural statements matter in assessing the constitutionality of the entry ban is, straightforwardly, “Yes, to precisely the extent that those statements are probative of his reasons for taking the challenged action.” The constitutional inquiry is about why the President acted, not about what words he said; his words spoken at any time are neither more nor less than potential evidence of his reasons for acting. In exactly the same way, the answer to the question of whether the President can do this or that in the future is that he is always entitled to act for constitutionally legitimate reasons, and no court should get in the way unless it believes that a particular action had unconstitutional motives, and no prior statements of bigotry are automatically conclusive in the future. They’re just worth what they’re worth. Would the President have done this thing irrespective of anti-Muslim prejudice? If so, it’s constitutional, even if there are other things he’s done in the past that were motivated by unconstitutional animus. What he said and did in the past is, again, neither more nor less than potential evidence of why he took the particular challenged action.
The choice by both lawyers in the case to offer implausible formalisms instead of this more realistic analysis may reflect a fear of asking courts to make case-by-case judgments—especially about the President, and especially in the realms of national security and foreign affairs. But constitutional law as currently constituted makes the validity of lots of governmental actions turn on the motives or purposes of the relevant government actors. That’s true in the First Amendment context, and it’s true in equal protection as well. If those are the rules, then courts are going to need to ask why government actors acted. Rules about magic words are not going to give us the real answers. As applied here, what they’ll give us instead is license for the President to act on the basis of unconstitutional motives, more or less secure in the knowledge that the courts will pretend not to know why he acted.
There are excellent reasons why the President should get the benefit of the doubt where national security is concerned. When courts do motive analysis in contexts like these, they should not lightly conclude that the President acted for impermissible motives. But the benefit of the doubt is one thing, and fictionalizing the account of motive so as to avoid reaching a certain conclusion is something else. It crosses the line from deference to abdication.
If, as expected, the Court upholds the ban 5-4, it will be located in the tradition of the Court deferring to the executive branch in wartime. This would not, however, really be right — after all, if the Democrats had a Senate majority in 2016 the case would almost certainly come out the other way. This decision would be much more properly located in the tradition of Plessy v. Ferguson and McKleskey v. Kemp and Shelby County v. Holder: that is, conservative treatment of race that falls somewhere on the spectrum between “willful blindness” and “gaslighting.” The routine is familiar: you need to show intentional discrimination by state individuals, and virtually all evidence of such discrimination is preemptively rejected. Roberts’s embarrassingly illogical arguments give away the show.