Immigration Article of the Day: Animus, Again by William D. Araiza
Animus, Again by William D. Araiza
Abstract
Only a week into his second term, President Donald Trump has already issued multiple executive orders targeting immigrants and transgender people. Additional actions targeting these and other vulnerable groups may well follow and remain a part of the President’s policy agenda and governing style. These actions call for analysis of the legal tools litigants can deploy to challenge them. That call is urgent, as a response not just to the orders already issued, but to others the Administration might promulgate in the future, targeting additional groups.
One of those tools is equal protection animus. This Essay, written in the early days of the new Administration, considers the prospects for equal protection animus-based challenges to the actions already taken and those that may follow in the months and years ahead. Relying on the Supreme Court’s surprising revival and regularization of the animus idea in 2020, it applies this evolving doctrine to the Administration’s early actions in the immigration and transgender rights areas. It concludes, tentatively, that animus can be a useful part of equality litigators’ toolkit.
Beyond furnishing a tool to challenge the Administration’s early actions, this Essay also provides guidance on how litigators and others can challenge other equality- and rights-infringing actions the Administration may take in the future. It concludes by reflecting on the substantive, rhetorical, and political appropriateness of deploying animus-based arguments in the current national moment.