PROCESS SCRUTINY: MOTIVATIONAL INQUIRY AND CONSTITUTIONAL RIGHTS

The topic of political branch motivation has long bedeviled courts and scholars, especially when facially neutral government action is under constitutional challenge. The definitive decision in this realm, Washington v. Davis, holds that a finding of discriminatory intent is necessary to prompt more exacting scrutiny of facially neutral legislation or administrative action. One major problem with this rule is that it risks licensing malintent by encouraging policymakers to conceal invidious purposes behind seemingly nondiscriminatory language. For this reason, Davis is often seen as a low point for constitutional law that fails to address the many forms of state-sponsored discrimination.

This Article seeks to overcome some of the difficulties within the Court’s intent standard by showing how process failure can help surface forms of improper intent that are otherwise hard to see. A number of commonly used procedures—such as the quality or duration of deliberation, the involvement of experts, the facilitation of regular public hearings and open debate, and the documentation of studies and reasoning behind various policies—provide useful indicators in discovering political branch motivation. These “small-p” procedures are different from the strain of procedural failure that preeminent process theorist John Hart Ely provides as a classic rationale for heightened scrutiny. While the elegance and power of Ely’s theory has ensured its rightful place in our constitutional canon, the theory has a blind spot—it cannot ferret out many forms of discrimination that are hidden from plain sight by more sophisticated lawmakers. In shifting the inquiry from interest group dynamics in the legislative or executive process to a procedural baseline set by the political branches themselves, this Article offers a method that courts can use to surface malintent (or vindicate government intent) trans-substantively and in ways that are consistent with established doctrine.

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* Professor of Law, Fordham University School of Law. I am grateful to Daniel Abowd, Bill Araiza, Eric Berger, Jessica Bernhardt, Jessica Bulman-Pozen, Corey Brettschneider, Erwin Chemerinsky, Ben Clinger, Nestor Davidson, Joshua Deull, Howie Erichson, Abner Greene, Jeffrey Harper, Andrew Kent, Ben Klein, Annie Lai, Rachel Manning, Henry Monaghan, Emily Morrow, Joshua Phang, David Pozen, Jed Purdy, Ariel Robbins-Rothman, Bertrall Ross, Bijal Shah, Johnny Shaw, Glen Staszewski, Kendall Thomas, Juliette Todd, Adam Winkler, and Andrew Witkor for their comments and suggestions.

INTRODUCTION

Judicial inquiries into political branch motivation have long bedeviled courts and scholars. 1 See, e.g., Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 Harv. L. Rev. 523, 528 (2016) [hereinafter Fallon, Constitutionally Forbidden Legislative Intent] (noting that Supreme Court cases display “varied approaches to the identification of legislative intent,” some of which are “wholly coherent” and others which “manifest ambiguity”); Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1215 (2018) (observing that “the federal judiciary has not homed in upon a single definition of discriminatory intent” or “a consistent approach to the evidentiary tools through which discriminatory intent is substantiated”). Importantly, Richard Fallon’s critique of the Supreme Court’s intent jurisprudence is limited to the “sometimes peculiar problems posed by judicial inquiries into the intentions of multimember legislative bodies,” not executive branch action. Fallon, Constitutionally Forbidden Legislative Intent, supra, at 530; see also Michael C. Dorf, Even a Dog: A Response to Professor Fallon, 130 Harv. L. Rev. Forum 86, 86–87 (2016), http://harvardlawreview.org/wpcontent/uploads/2016/12/Vol.130_Dorf.pdf [https://perma.cc/V8UR-QN59] (agreeing on the one hand that the Court’s doctrine on impermissible legislative intent is mostly unsatisfactory, while challenging Fallon’s decision to treat review of legislative action differently from executive and administrative action); Brandon L. Garrett, Unconstitutionally Illegitimate Discrimination, 104 Va. L. Rev. 1471, 1479 (2018) (noting that “[i]ntent standards have practical limitations, and critics are right to point to difficulties in defining and proving intent,” but such standards carry with them the “virtue of deterring extremely damaging conduct”). Especially difficult are questions regarding judicial review of facially neutral government action—whether legislative or executive—facing constitutional challenge. The canonical decision in this arena, Washington v. Davis, holds that facially neutral legislation or administrative action resulting in a disparate impact on the basis of a protected characteristic will not, without more, trigger heightened scrutiny. 2 426 U.S. 229, 242, 252 (1976) (upholding a police-officer entrance exam that African Americans tended to fail at higher rates than whites and refusing to apply more exacting scrutiny in the absence of compelling evidence of racially based motivation); see also Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 280–81 (1979) (upholding legislation giving preference for veterans in civil service positions despite the law’s discriminatory impact on female applicants); Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–70 (1977) (holding that a town’s refusal to rezone a tract of land to allow for development of multifamily dwellings was not motivated by a racially discriminatory purpose or intent, despite the zoning decision’s disparate impact on the African American population). More specifically, Davis requires evidence of discriminatory intent to prompt more careful scrutiny of government action. 3 Davis, 426 U.S. at 239 (“[O]ur cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.”). One major criticism of the Court’s intent doctrine is that it permits policymakers to conceal invidious purposes behind facially neutral language. For this reason, many argue that Davis perversely licenses state-sponsored discrimination by encouraging government actors to hide their true motives behind facially neutral language, obscuring malicious intent from judicial review. 4 See, e.g., Yvonne Elosiebo, Implicit Bias and Equal Protection: A Paradigm Shift, 42 N.Y.U. Rev. L. & Soc. Change 451, 487 (2018) (arguing that because it is “nearly impossible . . . to prove discriminatory purpose in court, . . . Washington v. Davis should be overruled”); Charles Lawrence III, Unconscious Racism Revisited: Reflections on the Impact and Origins of “The Id, the Ego, and Equal Protection,” 40 Conn. L. Rev. 931, 944 (2008) (advancing “the more fundamental argument that Davis was wrong because the injury of racial inequality exists irrespective of the motives of the defendants in a particular case”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1136 (1997) (arguing that the intent doctrine comprises a larger body of case law formally ending substantive equality and is an illustration of how modern equal protection doctrine “insulates many, if not most, forms of facially neutral state action from equal protection challenge”); Girardeau A. Spann, Good Faith Discrimination, 23 Wm. & Mary Bill Rts. J. 585, 623 (2015) (arguing “that the current Washington v. Davis and Feeney distinction between actuating and incidental intent has outlived any usefulness that it may ever have had”); cf. Bertrall L. Ross II, The Representative Equality Principle: Disaggregating the Equal Protection Intent Standard, 81 Fordham L. Rev. 175, 183–84 (2012) (arguing that the equal protection intent standard the Court created has been applied inconsistently); Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 764 (2011) (“If legislators have the wit . . . to avoid words like ‘race’ or the name of a particular racial group in . . . their legislation, the courts will generally apply ordinary rational basis review. This tendency is true even if the state action has an egregiously negative impact on a protected group.”).

This Article seeks to overcome the difficulties of operationalizing the Court’s intent standard by showing how more easily detectable kinds of procedural failure—or “small-p” process—can help surface forms of improper intent that are otherwise hard to see. A number of commonly used procedures—such as the quality or duration of deliberation, the involvement of experts, the facilitation of regular public hearings and open debate, and the documentation of studies and reasoning behind various policies—provide useful indicators in deciphering political branch motivation.

Small-p procedures are different from the strain of procedural failure, famously articulated by process theorist John Hart Ely, that provides a classic rationale for heightened scrutiny. 5 See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (outlining “representation-reinforcing” judicial review as a mechanism for shoring up failures in the process of representative government). Ely’s brand of process failure is based upon the Constitution’s role in preserving access to the political process—what this Article refers to as “Big-P” process. 6 See id. at 76 (“[I]t is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open.”); see also Pamela S. Karlan, John Hart Ely and the Problem of Gerrymandering: The Lion in Winter, 114 Yale L.J. 1329, 1332–38 (2005) (discussing Ely’s representation-reinforcement theory in the context of legislative apportionment); Peter Linzer, The Carolene Products Footnote and the Preferred Position of Individual Rights: Louis Lusky and John Hart Ely vs. Harlan Fiske Stone, 12 Const. Comment. 277, 277–78 (1995) (contrasting the “process-based orientation” of Louis Lusky’s and Ely’s interpretation of Footnote Four with Stone’s view of the same as a statement of “the ‘preferred position’ of non-economic rights”). In contrast, small-p procedures are the more common political branch undertakings, or vetting processes, that culminate in acts of government. 7 For the purposes of this Article, the words “procedure” and “process” are used largely interchangeably. References to “small-p” processes or procedures are intended to refer to any of the myriad steps governmental actors take that culminate in the promulgation of a law or the formation of an administrative rule or order. Oftentimes, “procedure” is used in a broader context than “process.” Compare Procedure, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012) (defining procedure as “a series of steps followed in a regular definite order”), with Process, Merriam-Webster’s Collegiate Dictionary (11th ed. 2012) (defining process as “a series of actions or operations conducing to an end”).

Though the elegance and power of Ely’s theory has ensured its rightful place in our constitutional canon, 8 See, e.g., Richard A. Posner, Democracy and Distrust Revisited, 77 Va. L. Rev. 641, 646 (1991) (“Ely’s argument is ingenious, elegant, and plausible.”); Jane S. Schacter, Ely and the Idea of Democracy, 57 Stan. L. Rev. 737, 737 (2004) (“Ely’s elegant extrapolation of footnote four has profoundly affected my own thinking . . . .”). the theory has a blind spot—it cannot ferret out many forms of discrimination that are hidden from plain sight by more sophisticated lawmakers. In a world in which invidious discrimination easily hides behind facially neutral language, Ely’s theory provides little help for courts determining whether a particular group deserves representation-reinforcing judicial review. This Article suggests a means to fill the void in Ely’s theory of Big-P process by showing how courts can and have analyzed small-p process failures to shed light on forms of improper intent that are otherwise hard to see. In other words, there is ample room in the Court’s intent doctrine to overcome the difficulties of uncovering discriminatory intent by operationalizing process failure.

By shifting the inquiry from interest-group dynamics in the legislative process to more ordinary forms of process, this Article calls on courts and commentators to consider how small-p indicia can surface intent across a range of legislative and administrative contexts, and in ways that are consistent with established doctrine. Furthermore, the strain of procedural review outlined in this Article is not limited to analysis of ex ante processes—for example, the quality of deliberation, involvement of experts, or other procedures that precede a government enactment. To the contrary, courts may also examine constitutionality through analyses of ex post procedures—that is, a government’s ability to abide by the rules and procedures that are contained within a law or other enactment itself. 9 See infra section III.B (analyzing both the ex ante and ex post dimensions of process scrutiny to show how courts may also vindicate governmental policies, or smoke out improper motivation, by scrutinizing an enacting body’s ability or failure to conform to its own stated procedures).

A number of recent cases provide powerful evidence that small-p procedures can provide a basis for enhanced judicial scrutiny on the one hand or a vindicating mechanism on the other. From voter identification 10 See infra section II.A.1. to LGBT rights, 11 See infra notes 237–241 and accompanying text. from takings 12 See infra notes 131–141 and accompanying text. to affirmative action, 13 See infra notes 142–146 and accompanying text. and from national security 14 See infra notes 150–167 and accompanying text. to military personnel policies, 15 See infra notes 125–130, 196–213 and accompanying text. courts have frequently relied on small-p process to analyze the legitimacy of government action. And the analysis can work in two directions: While the government’s lack of procedural care can invite greater scrutiny and form a basis for invalidation, reviewing courts will frequently sustain challenged acts having negative consequences for various groups when those acts are the result of a thorough process, even going so far as to remove the taint of improper motivation. 16 See, e.g., Trump v. Hawaii, 138 S. Ct. 2393, 2409, 2421 (2018) (exemplifying judicial vindication of an executive action based on the perception of strong vetting measures, such as a “worldwide review process undertaken by multiple Cabinet officials and their agencies”); see also infra notes 19, 161–167 and accompanying text.

The judicial response to the Trump Administration’s travel ban is a paradigmatic example of both phenomena. 17 See infra sections III.A– III.B.1. In the aftermath of the travel ban’s first two iterations, lower courts uncomfortable striking down executive action based exclusively on the President’s campaign statements routinely focused on small-p process, noting how the Executive’s lack of coordination, deliberation, or consultation with agency experts weakened the case for deference. 18 See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 591–601 (4th Cir. 2017), vacated and remanded sub nom. Trump v. Int’l Refugee Assistance, 138 S. Ct. 353 (2017) (considering “the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and [other agency] evidence . . . that [the order] would not operate to diminish the threat of potential terrorist activity” in enjoining the second iteration of the Trump Administration’s travel ban). In contrast, by the time the third version of the ban reached the Supreme Court, Chief Justice Roberts touted ex ante procedures, such as the policy’s underlying “comprehensive” and “worldwide” review process, 19 See, e.g., Hawaii, 138 S. Ct. at 2403–04 (noting that the President “directed a worldwide review”); id. at 2404 (describing temporary measures until “completion of the worldwide review”); id. at 2408–09 (“The President lawfully exercised [his] discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest.”); id. (“[The President ordered the Department of Homeland Security (DHS)] and other agencies to conduct a comprehensive evaluation of every single country’s compliance with the information and risk assessment baseline.”); id. (“[The President set] forth extensive findings describing how deficiencies in the practices of select foreign governments . . . deprive the Government of [information] . . . [and concluded] that it was in the national interest to restrict entry of aliens who could not be vetted with adequate information . . . .”); id. at 2412 (noting how “the multi-agency review process [determined] whether those high-risk countries provide a minimum baseline of information to adequately vet their nationals”); id. at 2421 (“The Proclamation, moreover, reflects the results of a worldwide review process undertaken by multiple Cabinet officials and their agencies.”). The government made repeated references to this process throughout its briefing before the Supreme Court, see, e.g., Brief for the Petitioners at 2, 4–5, 15–16, 30, 58, 60, 63–66, Hawaii, 138 S. Ct. 2392 (No. 17-965), 2018 WL 1050350, and at the outset of oral argument, see Transcript of Oral Argument at 3, Hawaii, 138 S. Ct. 2392 (No. 17-965), 2018 WL 2446100 (“Mr. Chief Justice, and may it please the Court: After a worldwide multi-agency review, the President’s acting Homeland Security Secretary recommended that he adopt entry restrictions on countries that failed to provide the minimum baseline of information needed to vet their nationals.”). as well as ex post procedures in the form of exemptions, waiver provisions, and continued executive branch review. 20 See Hawaii, 138 S. Ct. at 2406 (noting the Proclamation’s “case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety” and its direction to DHS to continually assess entry restrictions and periodically report to the President); id. at 2422–23 (noting that the Proclamation calls for DHS and the State Department to issue guidance elaborating on circumstances that justify a waiver, as well as guidance to consular officers in determining eligibility for a waiver); see also Proclamation No. 9645, 82 Fed. Reg. 45,161, 45,169 (Sept. 24, 2017) (establishing a waiver program for, inter alia, foreign nationals previously admitted for purposes of work or study; those with “significant contacts” or “significant business or professional obligations”; those with close family members who are legally present; youth and those needing urgent medical care; and those employed by the government).

Ultimately, this Article employs ex ante and ex post process scrutiny to lay a foundation for a better understanding and application of discriminatory intent doctrine—a line of precedent that, while receiving tremendous scholarly attention, 21 See supra note 4. cannot be fully comprehended without grappling with its underlying procedural roots. The dynamic relationship between process failure and improper motive (or its close cousin, animus) 22 See William D. Araiza, Animus and Its Discontents, 71 Fla. L. Rev. 155, 185 (2019) (“[T]he Court’s animus jurisprudence has built upon the foundational statements of its discriminatory intent jurisprudence.”). finds some expression in the Court’s equal protection jurisprudence, in particular Justice Powell’s decision in Village of Arlington Heights v. Metropolitan Housing Development Corp. 23 See 429 U.S. 252, 266–69 (1977) (“Departures from the normal procedural sequence . . . might afford evidence that improper purposes are playing a role.”). However, commentators have largely overlooked the ways in which procedural regularity can serve as a constitutional compass directing further judicial inquiry into the underlying intent of a given law or policy. 24 See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1814 (2012) (“The rise of colorblindness and malicious intent, however, destroyed the capacity of equal protection to actually protect non-Whites. In this account, Davis and contextual intent more generally suffer the fate of victims[,]. . . [thus representing] a sad indicia of how far equal protection has devolved . . . .”); Siegel, supra note 4, at 1134 (explaining that the Court “continued to emphasize that plaintiffs might draw upon evidence of racial impact to prove a claim of discriminatory purpose,” but after Feeney “the Court made clear that it had raised quite a formidable barrier to plaintiffs challenging facially neutral state action”). Indeed, Powell’s process-based criteria provide especially helpful indicators in uncovering forms of discrimination that are easily masked using facially neutral language. 25 See, e.g., Sheila Foster, Intent and Incoherence, 72 Tul. L. Rev. 1065, 1130–31 (1998) (noting that the “evidentiary” approach codified in Arlington Heights enables courts to more deftly tread the “fine line” between deference and scrutiny); Haney-López, supra note 24, at 1809, 1814–15 (arguing that, irrespective of what it and Davis have come to represent to both scholars and the Court itself, Arlington Heights established a framework through which “[c]ontextual intent” can aid courts’ efforts to discern racial discrimination); cf. Yoshino, supra note 4, at 764 (arguing that “in Personnel Administrator of Massachusetts v. Feeney, the Court defined ‘discriminatory purpose’ so stringently that it made all the evidentiary bases enumerated in Arlington Heights, including disparate impact, almost irrelevant”). And a number of recent cases support this Article’s thesis that the “due process of lawmaking” 26 See Hans A. Linde, Due Process of Lawmaking, 55 Neb. L. Rev. 197, 293 (1976) (“[T]he relevant question of due process in lawmaking is never what law was made, but how it was made.”); see also infra notes 55–58 and accompanying text. and governmental motivation are often perceived in lockstep fashion, a point that has special salience for novel rights claims. 27 See infra section V.D (discussing the implications of process scrutiny in the context of novel or peripheral rights claims).

While this Article positions process scrutiny primarily as a tool to address malintent in facially neutral equal protection cases, the theory has broader ambitions for constitutional law. First, process scrutiny appears to make a meaningful difference in cases involving unconstitutional takings, where intent is not recognized as a key doctrinal criterion, 28 See infra notes 131–141 and accompanying text. and has been instructive in analyzing the fit between means and ends in relevant cases where heightened scrutiny applies. 29 See infra notes 125–130, 142–146 and accompanying text. The theory also has some overlap with “semisubstantive” constitutional theory, 30 See infra notes 253–261 and accompanying text. and it places “bilateral endorsement” theory in new light as well. 31 See infra notes 221–232 and accompanying text.

One important advantage of a small-p process framework is that it is based less on substantive interpretations of value and intent—which can be highly contested and subjective—and more on objective criteria grounded in the political branches’ own chosen practices. Yet even while process scrutiny offers powerful and revelatory indicators of governmental motivation, the theory also raises a number of concerns, including the risk of incentivizing or permitting an enacting body to camouflage other substantive deficiencies by simply meeting a bare minimum level of deliberation, setting the stage for evasion. 32 Cf. Dan T. Coenen, The Pros and Cons of Politically Reversible “Semisubstantive” Constitutional Rules, 77 Fordham L. Rev. 2835, 2839 (2009) [hereinafter Coenen, Pros and Cons of Semisubstantive Rules] (noting how procedural rulings allow for a situation in which “exactly the same law or practice that the Court had found objectionable would survive constitutional attack if political authorities, in a second go-round, avoided the initial process error”).

Following this Introduction, Part I lays out the baseline relationship between small-p process and the Supreme Court’s intent doctrine. Part II charts an evolving doctrine of process scrutiny in the context of legislation, focusing on Arlington Heights and a number of more contemporaneous examples. Part III demonstrates how the same dynamic of process scrutiny can be traced to judicial review of executive branch acts. Part IV explores the institutional dimensions of process scrutiny, including its institution- and issue-sensitive characteristics. Finally, Part V addresses normative implications, including the advantages and disadvantages of process-based approaches to deciphering intent, process scrutiny’s relationship with the Court’s “animus” doctrine, and the effect of process scrutiny on emerging rights claims.