Arlington Heights Case Anniversary: Why Business Conservatives Should Rethink The Sessions Nomination

There are many reasons to oppose the nomination of Jeff Sessions to be Attorney General, starting with why he was rejected for a federal judgeship thirty years ago. His record of statements and actions that suggest racial bias, central to that Senate rejection, has continued in his long public career. If confirmed to such a prominent cabinet position, Sessions could, as a result of these indications of racial bias, end up not just defending lawsuits against the federal government, but being a significant subject of suits challenging Trump-initiated policies as violating the Constitution's prohibition of racial discrimination.

Coincidentally, this week marks the fortieth anniversary of one of the Supreme Court's most significant decisions interpreting the Equal Protection Clause of the Fourteenth Amendment to the Constitution, which has been the main vehicle for challenging racial discrimination in this country. The Court's decision in Village of Arlington Heights v. Metropolitan Housing Development Corporation ("Arlington Heights") has played such a formative role that it is no stretch to assume that every law student has studied the case as part of a core education in constitutional law since the decision came out on January 11, 1977.

This anniversary comes one day after Senate confirmation hearings on Sessions begin. While the two events may seem wholly unrelated, their coincidence should cause Donald Trump and, perhaps more important, business conservatives who favor some of the incoming president's announced policy reforms, to rethink the controversial nomination of Alabama's junior senator. Arlington Heights demonstrates why Sessions' appointment to a position influencing the formation of key federal policies could contribute to federal court-ordered delays of some of the most anticipated changes proposed by Trump.

At issue in the Arlington Heights case four decades ago was a Chicago suburb's denial of a request to re-zone land to permit construction of a federally-subsidized townhome project for low- and moderate-income tenants. The project would have housed a disproportionately African American population in comparison to the surrounding village, and the developer filed a federal lawsuit challenging the denied re-zoning as racially discriminatory, in violation of the Fourteenth Amendment.

In rejecting the challenge, the Supreme Court majority reiterated what the Court had suggested in previous decisions: that the Fourteenth Amendment prohibits only intentional racial discrimination. The decision was part of a conservative Court majority's backlash against the view that discriminatory effects -- with or without racial intent -- alone violate the Equal Protection Clause.

In the passages for which the case is studied in law school, the Court majority indicated that determining "whether invidious discriminatory purpose was a motivating factor" in a challenged government decision, such as Arlington Heights' denial of re-zoning, requires "a sensitive inquiry into such circumstantial and direct evidence of intent as may be available."

The Court in Arlington Heights provided a non-exhaustive list of factors to consider in an Equal Protection challenge, including, for example, historical background and the specific sequence of events leading to the decision, as well as the administrative and legislative history of the decision. The Court also noted that disparate impact -- a disproportionate negative effect -- on a minority group - is an "important starting point" of the intent inquiry, but that such an impact alone would not generally suffice to prove a constitutional violation.

Basically, the Court adopted a flexible test for intent while insisting on demonstration of such racial purpose. Arlington Heights remains valid law, and the Court's flexible test would certainly encompass evidence of demonstrated racial bias by a key legal advisor and shaper of policy like the Attorney General. That is why the nomination - and confirmation should it occur - of someone like Sessions, with his known record, is so curiously self-damaging to the incoming presidential administration.

Of course, there are other troubling appointments - most notably, that of Stephen Bannon as chief strategist despite his significant time leading a media platform for the alt-right - that could strengthen the inevitable court challenges, under Arlington Heights, to major Trump policy initiatives. Still, it makes little sense to compound these extant potential problems by appointing someone with Sessions' record as the federal government's chief lawyer and legal advisor.

Many of the policies that Trump espouses -- and that business conservatives also likely support, perhaps justifying in their view holding their nose about some of Trump's own exclusionary rhetoric -- would have a predictably disproportionate negative impact on minorities. This satisfies the Arlington Heights starting point, rendering those policy changes ready targets for challenge under the Equal Protection Clause. The repeal of the Affordable Care Act and withdrawal of Obama Administration changes in overtime rules are just two examples of such policy proposals.

This should give business conservatives great pause about having Sessions as Attorney General. His presence in the position could contribute to the success of the likely federal-court Equal Protection lawsuits that will seek to block policy changes with a disproportionate impact on minorities, including policies that business conservatives favor.

By and large, business leaders have not come forward to address the nomination of Sessions to be Attorney General. There are many strong reasons to oppose Sessions' confirmation, but one for business conservatives to seriously consider arises from a case whose anniversary arrives just as the senator's confirmation hearings begin.