The 4Th Circuit & Animus Nether Mandel

(cross-posted at Take Care)

In the recent move ban appeals, the acting solicitor full general (ASG) relied largely on a illustration called Kleindanst v. Mandel to fighting that those exterior the solid position down are non protected yesteryear the Establishment Clause. But, every bit the Fourth Circuit Court of Appeals observed today inwards its determination blocking the move ban, he also unwittingly helped brand the case against the ban inwards his description of Mandel’s holding. The Fourth Circuit reasoned that piece matters of immigration require deference to the executive, this deference does non extend to executive orders based inwards “bad faith” or animus. 

In this post service I clarify that logic in addition to demonstrate why it doomed the ASG's position.

In Mandel, the Court concluded that immigration rules that were alleged to cause got discriminated on the position down of ideology did non violate the Free Speech Clause of the First Amendment. At oral declaration inwards the Fourth Circuit move ban case, the ASG argued that Mandel offers an option to cases like Church of Lukumi Babalu Aye, Inc. v. Hialeah (1992) and Lemon v. Kurtzman (1971) inwards thinking most how to apply the Religion Clauses inwards cases involving those exterior the solid position down (or at our borders). He contended that, under Mandel and subsequent cases interpreting it, all the authorities withdraw demonstrate inwards the immigration context is a “rational basis” for its actions, rather than the to a greater extent than demanding showing required nether traditional Establishment Clause doctrine.

But this analysis invites, rather than disavows, application of the animus doctrine that the Supreme Court developed inwards cases like Lukumi—and that I argued inwards an before essay in Politico and an amicus brief (along alongside my co-organizers Micah Schwartzman in addition to Nelson Tebbe, Joshua Matz, who did the main drafting in addition to many other constitutional police trace scholars who signed the brief) should hold out key to this case.

According to settled animus doctrine, laws that are based primarily inwards irrational prejudice lack a rational basis. Indeed, it was in Romer v. Evans (1996) that the Court most thoroughly described the dominion against animus—and did thus piece insisting that the proper measure of review was rational basis. So to invite rational position down review is to inquire whether the police trace is based inwards animus. In other words, if Mandel is understood every bit a mere rational position down case, this would compel review under Lukumi, non exclude it. (That conclusion is consistent alongside the persuasion that Mandel’s requirement of a “bona fide” ground for governmental activity precludes the authorities from acting inwards “bad faith.”)

To hold out sure, in Mandel itself the Supreme Court found that discrimination based on ideology might have a rational position down inwards the midst of the Cold War.  But a police trace based on prejudice against Muslims has no such conceivable rationale.

A to a greater extent than radical persuasion would agree that non fifty-fifty rational position down review applies to immigration rules inwards cases concerning persons exterior the country. On this view, those beyond our national boundaries are non fifty-fifty covered yesteryear the Establishment, Free Exercise or Equal Protection Clauses. But no illustration has e'er said that the Establishment Clause does non apply to immigration policy.  Indeed, the logic of the Clause demands that it hold out held to apply—if non straight to the persons abroad, thus to the practise of governmental power here in America. As Ira Lupu in addition to others cause got argued, the Clause is fundamentally most what constitutes illegitimate uses of authorities power, non most detail rights holders.  

That structural declaration most the Establishment Clause also extends to rationality review nether the Free Exercise in addition to the Fifth Amendment equal protection principle. Legitimate authorities activity of whatever kind, regardless of whether it is directed to those within or exterior the nation’s boarders, requires a rational basis. Animus toward whatever detail religion or ethnicity every bit a motivation for authorities activity agency at that spot is no rational position down for that action, since its real object is forbidden. 

Accordingly, every bit the Fourth Circuit recognized today, fifty-fifty if Mandel supplies the dominion of determination in addition to requires rationality review, animus is fatal fifty-fifty nether that standard.