Discriminatory Motives Have Consequences

The 4th Circuit has upheld the injunction against President Trump's anti-Muslim travel ban. Its opinion rests heavily on various statements by the President which evince a discriminatory motive -- over and over again he said that his goal was to target Muslims, and when he became convinced that an explicit Muslim ban was off the table, he conceded that the executive order he issued was a way to effectuate those discriminatory desires via alternative means.

I've already explained why it is normal -- indeed, legally required -- for courts to take President Trump's motives into account when assessing whether his order is discriminatory. You can't take "intent" out of "discriminatory intent." So the 4th Circuit's decision is entirely appropriate and in line with standard legal precedent and reasoning.

But there's another reason why this decision -- and the clear focus it puts upon Trump's discriminatory statements -- matters. Very early on, I suggested that the appeal of Donald Trump is directly tied not just to his various bigoted statements, but to the imperviousness he's demonstrated to any backlash against him for said bigotry.

When Donald Trump implies Obama is a Kenyan-born Muslim, when he suggests that Latinos are all violent criminals, when he legitimizes mass expulsion (or worse) of American Muslims -- maybe he's saying out loud what many people secretly believe but felt constrained in saying. Isn't this the root of the "anti-PC" backlash? "I used to be able to openly degrade women for having a menstrual cycle, but thanks to liberal elites and Feminazis I can't say that anymore! What happened to freedom in America?" The complaint of the anti-PC crowd is precisely that they have to keep quiet that which they'd rather broadcast (and once could broadcast, before we had to actually start listening to the desires of pesky minorities).

Most people can't say such things anymore, or at least they're constrained in their ability to do so. There are members of traditional outgroups in their workforce (maybe even their boss), or as powerful constituents, or major donors, or simply well-connected citizens. Saying such things comes with real costs, sometimes prohibitive costs. It can lose you your job, or your friends, or your reputation, or your candidacy. And some people resent that deeply even as they quietly stew and keep their true beliefs private.

But Donald Trump is different. He can say these things. He can't destroy his reputation -- he's his own brand. He can't be driven out of the race by outraged donors -- he doesn't need them. He can't lose his job -- he runs his own company. He doesn't have to defer to outraged outgroups -- what can they do to him? For someone with implicit biases, this may not matter -- he's so obviously over-the-top that his positions can't be reconciled with any sort of egalitarian commitment. But for the covertly-biased, he offers up a tantalizing vision where one can say all of those open, overt, explicitly biased things they genuinely believe and it's okay. They don't have to cover it up anymore.

Deeply rooted in Donald Trump's appeal is that one should be able to say or do racist, misogynistic, antisemitic, Islamophobic, xenophobic (take your pick) things -- and face no consequences whatsoever. There are many people who long for the days when they could exhibit those prejudices and it was simply fine. It didn't matter. And Donald Trump -- for so long entirely impervious to social or political consequence for his own explicit bigotry -- instantiates that dream.

And that, in turn, is why the 4th Circuit's decision matters. It tells the President and his followers -- using completely normal and unremarkable tools of legal analysis -- that these things do have consequences. In our society, governmental actions taken with a discriminatory motive are constitutionally infirm. When you go out and brag about your discriminatory motive, you put the resulting policy programs at risk. That's a known consequence of that decision; one built into our constitutional fabric promising freedom of religion and equal protection under the law.

So it's no wonder he and his supporters are so outraged. What Donald Trump promised -- the ideal he represented, and for a long time was able to live out -- was a world where bigotry ceased to have consequences. And the orders enjoining his Muslim ban represents the thing they hate the most -- accountability.