Since Brown v. Board of Education and the series of civil rights cases that followed, lawyers have known that any government action tainted by racially discriminatory intent is potentially subject to challenge under the Constitution’s guarantee of equal protection. No matter how broad the scope of government discretion, racial animus can jeopardize an exercise of that discretion. The currently pending challenges to Donald Trump’s Muslim ban demonstrate in part this established principle.
This legal axiom should be of great concern to Donald Trump as he continues to ponder how to react to the Texas state threat, issued at the end of June, which seeks to coerce him to rescind the highly successful Deferred Action for Childhood Arrivals (DACA) initiative. I recently argued that the “deadline” of September 5 put forward by Texas is a false and meaningless one that Trump could ignore without particular repercussion, if any, for the DACA initiative until well into 2018. Trump could and should ignore the “deadline” and move forward with negotiating a legislated substitute for DACA.
Yet, beyond the timing issues related to court consideration of any challenge to DACA, legal advisors should also be alerting Trump to a substantive legal danger in caving to the Texas threat. The concern relates to well-established constitutional doctrine on racial animus. The Supreme Court held over 40 years ago that unconstitutional, discriminatory intent may be proven through indirect, circumstantial evidence. In this regard, Trump already starts at something of a disadvantage.
Trump commenced his presidential campaign in June 2015 with a slander against Mexican immigrants, asserting that the vast majority are criminals and rapists. A year later, he accused a sitting federal judge of bias because of the judge’s Mexican American heritage; none other than Paul Ryan characterized Trump’s comments as “the textbook definition of a racist comment.” This year, Trump came into office, and initially proposed a Cabinet without a single Latino member. And, of course, more recently, Trump has struggled with equivocation on white nationalism in the aftermath of the Charlottesville violence. Finally, just last weekend, Trump pardoned and, not incidentally, heaped high praise upon Joe Arpaio, the disgraced former sheriff convicted of criminal contempt for repeatedly targeting the Latino community in unconstitutional policing tactics.
Moreover, while Steve Bannon and Sebastian Gorka are gone, Trump continues to receive advice from folks – including Attorney General Jeff Sessions and anti-immigrant Kansas Secretary of State Kris Kobach – whose histories and ongoing comments strongly suggest bias and prejudice. Unfortunately, some of these same people are the ones who are presumably providing “legal” advice on DACA.
What they should be advising Trump – but most likely are not advising him -- is that he should be avoiding additional circumstantial evidence that might support a courtroom contention that rescission of DACA is unconstitutional because motivated by racial discrimination. At a minimum, this would strongly counsel against doing anything that seems to be triggered by the threat emanating from the state of Texas.
The problem, of course, is that in the last several months more than one federal court has concluded that the Texas state government has engaged in intentional racial discrimination against the Latino community. While this came in cases challenging statewide redistricting and voter identification laws, a similar allegation is now being pursued in court against Texas’ recently enacted and immediately notorious anti-immigrant law, SB 4.
Legal advisors not animated by their own political views on DACA should be advising the president that he could jeopardize his own executive authority by acting in response to a threat from an adjudicated anti-Latino state government – in Texas -- to rescind an immigration initiative that he himself has indicated applies to an immigrant population he views as deserving protection. Better to clearly separate any decision on DACA from the Texas threat.
Trump’s single best move remains to ignore the Texas threat (or even tell the state publicly to pound sand), leave DACA in place, and work toward a long-term, legislated solution to protect a valuable and productive group of young, educated immigrants.