Judicial inquiries into political branch motivation have long bedeviled courts and scholars.
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.
More specifically, Davis requires evidence of discriminatory intent to prompt more careful scrutiny of government action.
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.
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.
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.
In contrast, small-p procedures are the more common political branch undertakings, or vetting processes, that culminate in acts of government.
Though 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 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.
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
to LGBT rights,
to affirmative action,
and from national security
to military personnel policies,
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.
The judicial response to the Trump Administration’s travel ban is a paradigmatic example of both phenomena.
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.
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,
as well as ex post procedures in the form of exemptions, waiver provisions, and continued executive branch review.
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,
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)
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.
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.
Indeed, Powell’s process-based criteria provide especially helpful indicators in uncovering forms of discrimination that are easily masked using facially neutral language.
And a number of recent cases support this Article’s thesis that the “due process of lawmaking”
and governmental motivation are often perceived in lockstep fashion, a point that has special salience for novel 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,
and has been instructive in analyzing the fit between means and ends in relevant cases where heightened scrutiny applies.
The theory also has some overlap with “semisubstantive” constitutional theory,
and it places “bilateral endorsement” theory in new light as well.
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.
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.