Judicial Review and Subjective Intentions

By Holloway, Carson | Faulkner Law Review, Fall 2017 | Go to article overview

Judicial Review and Subjective Intentions


Holloway, Carson, Faulkner Law Review


I. INTRODUCTION

In the biggest legal and constitutional controversy of 2017, President Donald Trump and several federal courts clashed over immigration and national security policy. Early in the new year, in one of the first major public policy determinations of his administration, President Trump issued an executive order temporarily halting immigration from several predominantly Muslim nations. (1) This step was necessary, the President contended, because the countries in question were especially vulnerable to being used as points of departure for terrorists seeking entry into the United States. (2) Caution therefore counseled that immigration from these nations be suspended while the administration devised the more stringent screening procedures necessary to safeguard American security. (3)

The order was immediately challenged as unconstitutional, and those pressing this claim found a sympathetic ear in some corners of the federal judiciary. (4) Some courts found that the executive order was in fact a ban on Muslim immigration into the United States. (5) As such, they held it likely violated the Establishment Clause of the Constitution's First Amendment. (6)

In order to justify this conclusion, the judges looked beyond--and really had no choice but to look beyond--the actual wording of the executive order. (7) The order itself does not mention Islam or Muslims. (8) It halts immigration of anybody from certain named countries, whether the persons excluded are Muslim or not. (9) Moreover, the order left untouched immigration from many other majority Muslim nations. (10)

Nevertheless, the judges claimed that they could glean the order's impermissible intent, not from its words and actual effect, but from what then-candidate Trump had said during the 2016 presidential campaign. (11) At that time, he raised the possibility of a temporary ban on all Muslim immigration into the United States because, he believed, such a ban would help to protect Americans from potential future acts of terrorism. (12) Candidate Trump then backed away from this proposal and instead suggested that his administration would pursue a policy of "extreme vetting" of immigrants in order to ensure that no potential terrorists would be admitted to the United States. (13) Once he was elected, the President issued the executive order that was the ultimate outcome of these developments. (14) Accordingly, some judges concluded, the executive order was really intended by the President to function as a kind of Muslim ban, even though this intention is not evident in the words of the order itself. (15) And this intention, they continued, would probably be found inconsistent with the First Amendment's prohibition on any law "respecting an establishment of religion." (16)

These conflicts between the President and the courts raise a number of interesting and important legal and constitutional questions. One might wonder about the scope of the discretion that the immigration statutes delegate to the President. How much discretion do these laws, properly interpreted, delegate to the executive, and how much is it constitutionally appropriate for them to delegate? One might also wonder about the relevance or applicability of the Establishment Clause to immigration policy. Is it possible for an immigration restriction--even one that would explicitly take religion into account--to amount to a law "respecting an establishment of religion"? (17) Finally, one might wonder whether it is appropriate for a court to go beyond the text of a legal instrument in order to find grounds for its alleged unconstitutionality. Should judges seek the intention of such an instrument primarily in its words, and the ordinary modes of interpreting them, or may they pry into the subjective political intentions of the legal authority responsible for the instrument?

This article examines the last of these questions. Did the judges who raised Establishment Clause issues with the President's executive order act appropriately in seeking the grounds for such concerns outside the text of the order itself? …

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