You Can't Take "Intent" Out of "Discriminatory Intent"

There is currently a debate regarding whether courts can use President Trump's campaign statements regarding his Muslim ban -- to wit, that it was indeed a "Muslim ban" -- as evidence of its unlawful character. Matthew Segal at Just Security says yes. Jeffery Toobin at The New Yorker says no. I confess I find Toobin's position baffling, verging on incoherent, and resting on fundamental confusion about how "intentions" might or might not matter in legal interpretation (a quick note: Toobin says he is basing his view on a forthcoming article by Cardozo Law Professor Kate Shaw. I haven't been able to locate a copy of Shaw's piece, so my critique is not directed at her or her arguments). Perhaps most alarmingly, Toobin's view continues a trend of making discrimination cases virtually impossible to win even in concept.

As we know, many of the judges who struck down Trump's travel ban did so, in part, by relying on statements by Trump and his aides telling us that this ban was designed to target Muslim immigration to the United States -- an unconstitutional motive. Toobin finds this "unsettling", as it implies that "an identical order would be upheld if Barack Obama had issued it, but that this one was invalidated because Trump was the author." As far as Toobin is concerned, either the "Muslim ban is constitutional or it's not" -- Trump's words don't matter; the constitutionality of the same legal text can't depend on extra-textual utterances by whoever happened to be the author.

I said that Toobin's argument rests on a fundamental confusion regarding how authorial intent might matter in legal interpretation, so let's parse that out. Consider a rather famous case where a federal statute criminalized the "use" of a firearm "during and in relation to . . . [a] drug trafficking crime." The defendant traded a gun for narcotics, the question was whether this qualified as a "use" under the statute. Imagine two universes, where the statutory text was identical, but had different primary authors:

In Universe A, the author says he is introducing this law because "I want to get as many criminals involved in drug trafficking off the street, for as long as possible. And since I know many drug traffickers carry guns, many drug traffickers will face stiffer penalties under this law."

In Universe B, the author says he is introducing this law because "the use of guns to commit or threaten violence is a scourge on our cities, and it is essential that we differentiate between violent and nonviolent instances of the drug trade."

Legislator-A's statement seems to suggest that he intended for "use" to include use as a means of exchange, Legislator-B's statement may suggest that he did not so intend. But, one might argue, the same legal text (again, recall that the text of the law is the same in both universes) should not have different meanings simply because of extramural utterances by the author that are not contained inside the text itself. The law means what it means; these statements simply have nothing to do with it either way. On this score, Toobin would have many followers (albeit not universal agreement).

In the above example, the question is whether stated intentions matter in determining what the law means -- who is included, who is excluded, what acts are allowed, what acts are illicit. But note that's not how intention is being used in the Muslim ban case. Courts are not using Trump's statements to determine whether or not the order does or does not encompass John Q. Muslim -- that is at least somewhat clear (relying on questions like whether he is coming from one of the covered countries). Rather, the question is whether or not the ban is lawful in the first instance -- not about its meaning, but about its legitimacy.

I stated that Toobin's argument basically makes discrimination cases impossible to win, and this distinction explains how. Suppose that Zack, an African-American man, has just been told by his boss Andrea "you're fired." Again, divide ourselves into two universes:

In Universe A, Andrea is racist, and she fired Zack because Zack is African-American.

In Universe B, Andrea is not racist, and she fired Zack because she doesn't like the color of Zack's shirt (in an at-will employment context, the reason doesn't have to be a "good" reason).

In both universes, Andrea has taken the same action -- she's fired Zack. Even more clearly than in the "use a firearm" case, the meaning of what Andrea did does not change based on her intentions -- it is unambiguous that she fired Zack. But the legitimacy, the legality, of her action absolutely depends on what her intentions were: in Universe A, Andrea has engaged in unlawful racial discrimination, in Universe B, she hasn't. That's because in American law the intention that motivates the action is what distinguishes discriminatory versus non-discriminatory conduct. And so here we have a clear example of what Toobin derides as absurd: the same action, the same text, is lawful or unlawful based entirely on who did it -- or more properly, based on the licit versus illicit motivations of who did it.

In this, discrimination cases are somewhat of an outlier in American law (though not completely so). For the most part, we assess the permissibility of a given law based on its effects, not based on the psychological motives that prompted it. In deciding whether a law imposes an "undue burden on a woman's right to choose" to have an abortion, for example, we're more concerned with the degree to which the law actually obstructs the ability to terminate a pregnancy. Intentions may be correlated -- it stands to reason that someone who wanted to impose such a burden is more likely to have written a law that does impose such a burden -- but they ultimately are not dispositive. A law intended to impose a significant burden that, in fact, does not do so will pass constitutional muster; a law that was not intended to seriously burden a woman's right to choice but turns out to be immensely burdensome should fail.

One could argue that discrimination law should operate in the same way -- it matters less what is in the headspace of any given actor and more the impact that it has on discrete and marginalized groups. So with respect to the Muslim ban, we might say that it doesn't matter why Trump did it, what matters is whether it has a disparate impact on Muslims (clearly it does), or whether it impedes their equal standing in American society (quite plausibly). But, for better or for worse, that's been firmly rejected by the judiciary. What matters is the intentions, and effects are only relevant insofar as they are probative of intent. In the inverse of the abortion case, we might think that an action that disproportionately and deleteriously impacts Muslims is more likely to have been motivated by anti-Muslim intentions than one which has no such disparate impacts; but ultimately the inquiry is solely about trying to figure out what motivated the action. And so again, it is entirely plausible given how anti-discrimination law operates that the same order, with the same impacts, could be lawful under one author (with neutral intentions) and unlawful under another (with racist intentions).

Obviously, lawyers are rarely stupid enough to simply admit that their client harbored a discriminatory motive. So much of discrimination litigation is about trying to suss out the actual motive in situations where the defendant insists that his or her intentions were pure as driven snow. It should go without saying that among the most powerful pieces of evidence one can put forward to establish a discriminatory motive is a declaration by the defendant that "I am doing this because of race/sex/religion".

Many people have commented on the emerging American trend of being less "racist" than "anti-anti-racist." Instead of affirmatively preaching racist policies, they instead stand aghast at anything actually being labeled "racist". How uncouth, how vulgar, how meanspirited! This instinct is the only thing that lets me make sense of simultaneously holding (a) that one can't call something discriminatory unless it was motivated by discriminatory intent and (b) that it's dirty pool to actually use someone's own direct statement of motivation as a means of establishing said intent. Talk about heads-I-win-tails-you-lose! If Toobin says we can't consider explicitly stated motives in assessing discrimination claims in a legal world where motive is legally dispositive, it becomes increasingly unclear what sort of evidence could establish an instance of discrimination even in concept. If (as Toobin holds) proper judicial interpretation doesn't incorporate statements of intention that lie outside the formal legal document, and "discrimination" only occurs where there is an illicit intent, then discrimination claims are impossible to win except in the absurdly rare case where the bad intention is somehow written into the document.