The racist, discredited argument Trump’s DOJ just made in a federal court

Who knew something like this could happen with Jeff Sessions in charge?

Jeff Sessions makes first speech as Attorney General. CREDIT: AP Photo/Pablo Martinez Monsivais
Jeff Sessions makes first speech as Attorney General. CREDIT: AP Photo/Pablo Martinez Monsivais

Here’s a pro tip for the lawyers at Jeff Sessions’ Justice Department: If you want to defend the president’s efforts to lock people out of the nation because of their religion, you might not want to rely on discredited Supreme Court decisions enabling a racist backlash.

Palmer v. Thompson is one of the great missteps in the Supreme Court’s often unfortunate history on matters of race. This case centered on the city of Jackson, Mississippi’s operation of five racially segregated public swimming pools. After a court ordered the pools integrated, the city closed the pools rather than operating pools where people of all races could swim. And the Supreme Court, in a 5–4 vote, let Jackson get away with this scheme.

As a federal judge acknowledged in 1989, “the Supreme Court has never expressly overturned Palmer, but it has all but done so.”

Nevertheless, the Trump administration cites Palmer favorably in a brief it filed in the United States Court of Appeals for the Fourth Circuit, which hears a challenge to Trump’s Muslim ban on Monday afternoon.


A central issue in that case, International Refugee Assistance Project v. Trump, is whether Donald 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 signed an order banning many Muslims from entering the United States.

At least on its face, the most recent version of Trump’s travel ban does not explicitly state that it is a Muslim ban — instead, it bans most citizens of six majority Muslim nations from entering the United States.

Nevertheless, there’s some evidence this was the ban’s true intent. As a candidate, Trump promised “a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” Trump later said that because “people were so upset when I used the word Muslim,” he shifted his rhetoric to talk about “territory instead of Muslim.” And former New York Mayor Rudy Giuliani, a close confidante to Trump, also said that Trump told him to “show me the right way to do it legally” — and that the nations-based approach was deemed the best way to give the impression that Trump’s Muslim ban was not actually a Muslim ban.

The Trump administration’s brief cites Palmer 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 administration, in other words, wants courts to evaluate the Muslim ban based solely on the facial language of the order and Trump’s official actions in office — not on his many promises to ban Muslims.

Palmer claimed that “no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it,” in part because “it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment.”

But the Court stepped away from Palmer only a few years after Palmer was handed down. 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.”

Even if Palmer does remain good law, moreover, much of its analysis has little bearing on an executive order signed by a single man. The “pitfalls” and “hazards” Palmer warned about arise in large part because it is very hard to assign a single motivation to a collection of many lawmakers. If 100 lawmakers vote for a bill, and 30 of them do so for racist reasons, is that sufficient reason to declare the bill unconstitutional? What if one of those 30 was an influential committee chair? What if only 10 of them clearly had racist motives but the rest of the lawmakers’ motives are unclear?

This problem of determining a collective body’s motives simply does not arise, however, when a single individual signs an executive order. So long as Donald Trump occupies the White House, his motivations are the only motives that matter — there’s no need for courts to engage in the admittedly quite difficult task of sorting through dozens of lawmakers’ statements to assess their motives.

Nor is it particularly difficult for judges to determine Trump’s motives in this particular case, since the man literally spent the better part of two years bragging about his desire to ban Muslims on the campaign trail.


In any event, the Trump administration’s decision to rely on a discredited decision that enabled a terrible result is a strange one. 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.”