Wednesday, March 22, 2017

I Guess I Tweet Now; Unrelatedly, Peek Away, but at What?

at @AsherLSteinberg.  I will work on replacing the egg icon with an appropriate picture of myself/my dog/a Chevron gas station (the slashes represent "or," not "and," unlike the slash in Judge Gorsuch's cryptic holding that an agency's "Chevron step two/Brand X adjudication" can't apply retroactively, which I think is intended to mean "and," though I've read the opinion two dozen times and still can't say for certain).

A thought I didn't want to write a separate post on, but have now in spite of myself.  I agree that it's appropriate, in reviewing Trump's EO, to "peek" at his "Muslim ban" proposal, as the latter is obviously at least a meaningful part of the legislative history, so to speak, of the former.  We can debate how much the motives animating that proposal have or haven't been cleansed by the new one - I think there's a respectable argument that they have - but it's silly to suggest the Muslim ban is inadmissible stump chatter.

What I don't understand, however, is the blithe assumption that the Muslim ban proposal is evidence of animus or a non-secular purpose.  I find Trump's actual motives fairly transparent.  Judging by the same remarks on which people rely to find animus, those motives consist, I think, of a desire to reduce the risk of "radical Islamic terrorism" from foreign Islamic terrorists (which all sorts of pre-Trump, post-9/11 domestic or foreign policies, including at least two wars, were created to specifically address) -- coupled with a possibly empirically false but not bigoted or utterly unreasonable premise that it's difficult and maybe impossible to tell for certain if any given Islamic immigrant is or isn't a would-be religiously motivated terrorist, given that persons who come to America to do us harm aren't likely to volunteer that information and are likely to do whatever they can to conceal evidence of their intentions.  It may well be impossible for a Syrian refugee to conceal residency in an ISIS camp, or jihadist social-media activity, but I think it takes some pretty motivated reasoning to conclude it's impossible for someone to become radicalized - which is just to say, to become an individual with a certain set of radical beliefs - without leaving some tangible trace of their radicalization, or tipping off immigration officials in interviews.  

Furthermore, I suspect, though I can't tell this from anything Trump has said, that Trump has somewhat exaggerated notions of how many Muslims around the world are radicalized in the relevant respect, but I don't see how those arguable mistakes of fact constitute animus, and I'm reasonably confident, given the unfiltered things Trump has said on the subject over the past two years, that he doesn't believe that all or most or anything like most Muslims are would-be terrorists.  I would agree that Trump's past and present proposals are vastly disproportionate to the risks that Muslim immigrants present and that less inhumane policies can do a near-perfect job of avoiding those risks, but disproportionality, though it can be evidence of an ulterior motive/animus, isn't proof of animus.  And I don't see that the belief, even if false (though I don't think it is), that a religion has some meaningful number of adherents who, on the basis of their religious beliefs, seek to do us terroristic harm, and that it is hard to perfectly suss out which adherents those are, comes anywhere close to being a form of animus or bigotry.

Then there's the question of secular/religious purpose, and here too I'm confused.  Trump's Muslim ban did not have the goal of establishing some set of favored religions, or disfavoring Islam as a matter of domestic policy; nor is it based on some theological objection to Islam as such.  Rather, the purpose of the Muslim ban was to reduce the risk of terrorism in this country; the reason Muslims were targeted is that terrorists in America or Europe (excluding white nationalist ones born and raised in the countries where they commit terrorist acts) tend, in Trump's view, to disproportionately be Muslims.  Where is the religious purpose in that?  If any facially religious classification has a religious purpose and is therefore per se invalid under Lemon, what use is the doctrine that says religious classifications and laws that target religion are subject to strict scrutiny?  When would that doctrine ever get any play?  

Suppose, e.g., a religion practices dog sacrifice and its members are banned from immigrating to this country; would such a ban have a religious purpose, or the purpose of saving canine life from sacrifice?  I think it only would have a religious purpose if dog sacrifice were being banned for religious reasons, e.g. dog-worship (like India's treatment of cows, which has a legal dimension that would almost certainly violate our Establishment Clause).  Even assume dog sacrifice's role in the religion is disputed among its members, and only a very small number of radical members practice dog sacrifice in large volume; we could argue about tailoring, we should possibly apply strict scrutiny depending on how one reads cases like Kleindienst v. Mandel, but would a ban on immigration by members of that religion have a religious purpose?  Did the Lautenberg Amendment's preferences for Soviet Jewish refugees have a religious purpose, or the purpose of protecting a persecuted group that happened to be defined by their persecutors in religious terms?  Did the religion-targeting ban of animal sacrifice in Lukumi Babalu Aye have a religious purpose, or an animal-cruelty purpose such that it was only subject to strict scrutiny, rather than per se invalidation?  It strikes me that the district courts that have invalidated Trump's order on Establishment Clause grounds, and the people defending them, are assuming that all facial or masked religious discrimination is motivated by a religious purpose by definition and per se invalid -- but that can't, I don't think, be right.

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