Media Mention

Ilya Somin: Bill Barr is Wrong to Claim Courts Cannot Examine Government Motives

November 30, 2019

Note: Reason originally published this piece by Checks & Balances member Ilya Somin

In a deservedly much-criticized recent speech before the Federalist Society, Attorney General William Barr outlined an extraordinarily expansive view of executive power. One aspect that, until recently, did not get much attention is his claim that it is almost always improper for courts to examine the motives underlying the actions of government officials:

The Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action. To take the classic example, if a police officer has probable cause to initiate a traffic stop, his subjective motivations are irrelevant. And just last term, the Supreme Court appropriately shut the door to claims that otherwise-lawful redistricting can violate the Constitution if the legislators who drew the lines were actually motivated by political partisanship.

What is true of police officers and gerrymanderers is equally true of the President and senior Executive officials. With very few exceptions, neither the Constitution, nor the Administrative Procedure Act or any other relevant statute, calls for judicial review of executive motive. They apply only to executive action. Attempts by courts to act like amateur psychiatrists attempting to discern an Executive official’s “real motive” — often after ordering invasive discovery into the Executive Branch’s privileged decision-making process — have no more foundation in the law than a subpoena to a court to try to determine a judge’s real motive for issuing its decision. And courts’ indulgence of such claims, even if they are ultimately rejected, represents a serious intrusion on the President’s constitutional prerogatives.

This kind of argument became popular in some conservative circles during the legal battle over President Trump’s travel ban, in which the administration used a thin veneer of national-security rationalizations to cloak religious discrimination.

The argument is nonetheless both weak, and fraught with dangerous implications if it were to be accepted by the courts. If judges cannot examine government motives, officials could severely undermine a wide range of important constitutional rights.

As Milad Emam of the libertarian public interest firm Institute for Justice points out, courts in fact routinely consider government motives in assessing a variety of constitutional claims:

[Barr] implied that “otherwise-lawful” actions are constitutional irrespective of governmental motive.

But the U.S. Supreme Court has, in fact, repeatedly held that the government’s motives often are relevant in determining whether its actions are constitutional. For example, in First Amendment cases, it is relevant whether the government has regulated speech “because of disagreement” with its message or whether regulation was “justified without reference to the [speech’s] content.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Speech restrictions that fall into the former category are presumptively unconstitutional. And, to figure out whether restrictions are in that category, the Supreme Court “look[s] to governmental motive.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228-29 (2015). (In Reed, the Supreme Court clarified that even where the government’s motive is innocent, speech restrictions that discriminate based on content are presumptively unconstitutional; but I digress.)

The Supreme Court scrutinizes governments’ motives for good reason. If it didn’t, federal and state governments could circumvent constitutional restraints by offering pretexts for their actions.

Continue reading at Reason’s The Volokh Conspiracy.