Bad Argument Cited by Trump Administration in Travel Ban Case / 13A

As the Fourth Circuit prepares to hear oral argument en banc tomorrow about the Trump Administration’s Muslim ban, it should pay careful attention to a subtle but significant citation in the United States’ brief: Palmer v. Thompson. This goes to the heart of the issue of whether and how to establish that the Trump administration acted with discriminatory intent.

One can read a reply to this argument, which is bad on optics alone, here., the source of all anti-Trump legal analysis really, including about the Comey firing. There was some talk on Twitter from more than one person sympathetic about the challenge that the ACLU law didn't do a good job during oral argument. This includes this woman who still thinks the travel ban violates the Establishment Clause.  Hopefully, this is the bottom line, with or without some bad oral advocacy.  Religious liberty is not just a matter of protecting  religious beliefs of some.

Palmer v. Thompson involved a city responding to a judgment against segregated pools by closing them down, arguing they had a neutral reason to do so involving cost and public safety.  It was a close opinion with Justice White writing one his best opinions as the primary dissent.  The primary argument being the government "may not have an official stance against desegregating public facilities and implement it by closing those facilities in response to a desegregation order."  The cost claims was cited as dubious.  The public safety claims in effect a heckler's veto.

So, basically, the lack of a discriminatory purpose [which two justices separately concurred to emphasize; they did not simply deny it should be a thing to worry about]  was a sham.  As noted here, even the reasons offered for taking the closing of the pools at face value is weaker when it is not a matter of trying to determine the intent of a legislature, but one person. It is basic discrimination law that you weigh the evidence here.  Trump comes out badly here.  I noted something Justice Thomas wrote in another matter that arose recently is relevant here:

As long as that intent remains, of course, such a policy cannot continue. And given an initially tainted policy, it is eminently reasonable to make the State bear the risk of nonpersuasion with respect to intent at some future time, both because the State has created the dispute through its own prior unlawful conduct [cite omitted] and because discriminatory intent does tend to persist through time.

Justices Douglas and Marshall (joined by the other two and noting he agreed with Douglas' dissent) wrote dissents as well.  Justice Douglas made various somewhat rambling comments of a somewhat open-ended character about Ninth Amendment rights, the Thirteenth Amendment and so on.  The opposition during oral argument spent some time dealing with the Thirteenth Amendment claim, which apparently was somewhat tacked on late in the day and not given much respect in the majority opinion.  But, even the majority left open -- pursuant to the enforcement clause -- Congress regulating in this area to broadly address "badges of slavery." That is, even if something is not directly slavery or involuntary servitude, Congress can regulate to abolish all aspects of it.  If I might, a sort of "penumbra and emanations" approach.  Or, necessary and proper. *

Even Douglas spent more time with the Ninth Amendment than the Thirteenth Amendment in this case.  He addressed that argument more in Jones v. Mayer, where the Court itself uphold a federal housing discrimination law (versus private action) as legitimate under the enforcement clause.  The Thirteenth Amendment popped up as a sort of also ran later on in City of Memphis v. Greene, involving closing of a street in a way alleged to be discriminatory.  The dissent itself briefly touched upon the argument that the Thirteenth Amendment on its face, without enabling legislation, applied.  So, again, an open question.

The question is complicated by trying to reach the appropriate result in the state action debate.  The Thirteenth Amendment is special in that it directly touches upon private action -- slavery is abolished, even if there is no state action involved.  But, in practice, that really tends to be the case. Slavery and involuntary servitude required various state involvements.  This is true with housing discrimination (enforced in courts and furthered by public policy) and various types of other discrimination in contracts that have been held to be appropriately addressed by federal legislation.  The fact that a too limited view of "state action" is still in place here, The Civil Rights Cases still haunting us, is duly noted.  Section Two help there.

The true reach of the "badges of slavery" and therefore what is necessary for complete freedom honoring the Thirteenth Amendment remains to be answered.  The nature of "slavery" itself is debated as seen by application of the amendment to the abortion context.  We don't need no stinking badges in general here, however, and public policy should recognize this fact.  Basic freedom involves freedom of travel, choice of work, where to live and who to associate with along with a variety of other things lacking to those enslaved.  History is informative here.

The Thirteenth Amendment is particularly concerned with race though "race" has been deemed to be an open-ended thing such as appealing to historical understanding that religious groups are covered. [Lest we forget, this whole discussion is in response to an argument used to uphold the travel ban in a way that discriminates against Muslims.]  So, discrimination that taint in a specific way (see, e.g., Chris Hayes' new book) are a "badge of slavery" by the terms of the amendment.  This overlaps with the Fourteenth Amendment, but in a more open-ended, visceral way, again in part because of its reach to private parties and the harsher character of an amendment directly addressing slavery.

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* As applied here, the argument is that closing the pools here was a "badge of slavery" particularly because of a fear of racial intermixing, particularly in such an intimate fashion. Whites might have been deprived of pools too, but the "badge" was rightly felt to be on the blacks in particular.

Racism in general cannot truly be separated from slavery here, racial discrimination over time mixed in with beliefs about the character of blacks and customs/laws growing out of this from slavery on down. So, segregation in Boston in the 1850s very well might be a "badge" of slavery in this fashion, even though slavery was ended in the 1780s.  See also, the dissent in Plessy v. Ferguson regarding segregation.