The Dept of Justice, headed of course by Attorney General Jeff Sessions, is tasked with defendant President Trump’s executive order that prohibited entry into the United States from several majority-Muslim countries. This coming Monday, the Fourth Circuit will hear argument on the second version of the Trump travel ban, which two lower courts have already ruled should not be enforced. The specific case before the Fourth Circuit, International Refugee Assistance Project v. Trump, concerns an order by Maryland Federal District Judge Theodore Chuang. That order halted a key provision of the most recent version of Trump’s Muslim ban. This will be the first appeals court to consider the revamped ban.
One likely issue to come up in oral argument, however, will be difficult for the DOJ to address: Why it chose to rely on the case of Palmer v. Thompson in its brief. Constitutional scholars will know Palmer as one of a few of the Supreme Court’s decisions from our nation’s past that have never been overturned but are highly disfavored for their racist holdings. The Dred Scott decision, (which held that slaves were property and therefore had no standing to sue in Federal Court even after having been brought to a free state), and Korematsu v. United States which upheld the internment of Japanese people during World War II are the first to come to mind. Palmeris similarly discredited because it upheld Jackson, Mississippi’s decision to close 4 out 5 public pools after it was forced to integrate them and allowed the lessee of the fifth pool (the YMCA) to operate the last remaining pool as a “whites-only” facility. None of these ugly marks on US jurisprudence have been overturned but everyone knows that they are seriously looked down upon, reviled, and never, ever to be cited.
Well, everyone, that is, except the nine government lawyers who signed off on this travel ban brief. A central issue in the case is whether Trump’s many, repeated statements that he intends to ban Muslims from entering the United States show that he acted with “an unconstitutional motivation” when he signing the order. The Trump administration’s brief cites Palmer v.Thompson for the proposition that “searching for governmental purpose outside the operative terms of governmental action and official pronouncements is fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’” The Court in Palmer held (5-4) that the Court could not try and determine whether the Jackson City Council was being honest when they said their decision was not based on race but was based on “economics” and “safety.” The majority said they were obligated to accept the neutral language of the law on its face. Of course Justices Brennan and Marshall filed strong dissents but Palmer became the law of the land at least for a little while. The Court stepped away from Palmera few years after it was decided. As Justice Byron White wrote for the Court in Washington v. Davis, “to the extent that Palmer suggests a generally applicable proposition that legislative purpose is irrelevant in constitutional adjudication, our prior cases. . . are to the contrary.” Furthermore, many other federal cases have since held that Palmer is not favored and have refused to apply it when it was cited by private litigants.
Palmer is also a bad case to cite just from a litigation standpoint. Its holding was based on the difficulty courts could face trying to determine the motivation of any entire legislative body. But the travel ban is an executive order so its only the President’s motivation that matters. Proponents of the ban were of course quick to cite the numerous instances in which Trump professed to ban Muslims once in office to prove his motivation.
In any event, the decision to rely on a discredited case that enabled segregated swimming pools in Mississippi in 1970 is a bizarre choice and only serves to show that this Administration is not only uncaring about a racist perception but also that it does not operate like a well-oiled machine. There is no reason to cite this case as its main holding has been reversed and as it upheld racial segregation. As J.P. Schnapper-Casteras, who first pointed out the troubling citation at Take Care Blog, notes, the Trump administration’s decision to cite a largely discarded segregation decision “is somewhat evocative of a recent brief by the state of Kansas favorably citing Dred Scott — a move that quickly went viral, was widely condemned, and prompted a formal withdrawal and apology by the Kansas Attorney General.”
I doubt Jefferson Beauregard Sessions III will ever apologize for anything he does and as for President Trump apologizing, you must be joking. I only hope that the Fourth Circuit takes the government’s lawyers to the woodshed for resurrecting Palmer and relying upon it for one of the main points of its brief.
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