Courts Shouldn’t Rely on Election Returns to Give Trump a Blank Check for Policies Motivated by Unconstitutional Discrimination
During Donald Trump’s first administration, his travel ban policy barring almost all migration from several Muslim-majority nations was challenged in court on the grounds that it was unconstitutional because motivated by anti-Muslim bias. Co-blogger Josh Blackman argues similar arguments should not be accepted by courts in the next Trump administration because polling data indicates Trump made significant gains among Hispanic and Muslim voters in the 2024 election. Judges should not take his advice. The key issue in cases where seemingly neutral policies are challenged for having unconstitutional discriminatory motives is the motivation of the people who adopted them, not the backgrounds of the people who voted for them.
In the travel ban case, the main evidence against Trump was not who voted for him in the 2016 election, but his own repeated statements indicating that his intention was to target Muslims for exclusion, plus the extreme weakness of the supposed “security” rationales for the ban. This should have led courts to strike down the travel ban based on longstanding precedent holding that evidence of unconstitutional discriminatory motive (such as discrimination based on race, ethnicity, or religion) should lead to invalidation unless the government can show it would have adopted the same policy even in the absence of such ilicit motivations. Ultimately, a closely divided 5-4 Supreme Court upheld the travel ban on the grounds that the executive deserves special deference on immigration policy that would not be extended in almost any other context. Elsewhere, I have argued this double standard is badly misguided. Be that as it may, no one on either side of that litigation argued the issue turns on survey data, election returns, or the ethnic and religious composition of the electorate that voted for Trump.
Voters are not the ones who adopt these policies. Moreover, the fact that a candidate has supporters from a given ethnic or religious group doesn’t mean he cannot or will not adopt policies biased against them. He might, for example, do that to satisfy other (to him, more crucial) constituencies. Democrats, for example, routinely get strong support from Asian-Americans (far higher percentages than Trump got from Hispanics or Muslims in 2024), but also support various racial preferences that discriminate against them. Such voting patterns also don’t necessarily show that members of the groups in question actually believe the candidate isn’t biased against them. Many Hispanics and Muslims likely voted for Trump on “lesser evil” grounds, or because of anger at the Democrats at the state of the economy.
Of course, Josh Blackman’s ultimate position may be that courts should ignore evidence of motive entirely. On that view, if a policy is facially neutral, it should be upheld, regardless of the possible motivations behind it.
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