Immigration Article of the Day: Plenary Power and Animus in Immigration Law by Shalini Ray
Plenary Power and Animus in Immigration Law by Shalini Ray
Abstract
After a campaign denigrating Muslims “as sick people,” blaming the children of Muslim Americans for terrorism, and promising to “shut down” Muslim immigration, and mere days after his inauguration, President Donald J. Trump banned the nationals of seven majority-Muslim countries from entry into the United States. In the litigation that followed, one question persisted: does the plenary power doctrine, which gives vast authority to the political branches to select criteria for exclusion, tolerate racial or religious animus? Currently, the Supreme Court reviews exclusion decisions deferentially for the existence of any “facially legitimate and bona fide reason,” under Kleindienst v. Mandel, but explicit animus raises a key question: what effect, if any, does explicit presidential animus have on this deferential standard of review?
Current jurisprudence accounts for animus in conflicting ways. To curb the discriminatory impact of plenary power, some courts have turned to Justice Kennedy’s concurring opinion in Kerry v. Din and interpreted deference not to apply where a complainant has “plausibly” alleged animus “with sufficient particularity.” Other judges have maintained that the President need identify only one legitimate reason, no matter how insignificant, for the policy to prevail, even if there is “smoking gun” evidence of animus.
This Article argues that neither approach properly tracks how deference works. Analyzing deference and analogous doctrines in other areas of law, this Article argues that courts should use a mixed motives framework that invalidates a contested law only where the impermissible motive was a “but-for” motive for the law. Under this approach, plaintiffs must “plausibly” allege animus with “sufficient particularity.” The government may then assert an affirmative defense that it would have made the same decision regardless of animus. After direct evidence of animus is proffered, the government must prove that animus was not a “but-for” cause of the contested law. This framework invalidates policies lacking sufficient non-animus justifications, but permits laws for which animus is not a necessary motive. This Article addresses objections that the proposed approach insufficiently defers to the political branches, and, alternatively, that it constitutes a “toothless” test. Ultimately, this Article seeks to offer a way for courts to capture better the benefits of immigration deference while minimizing the costs.
KJ