Symposium: What might Trump v. Hawaii portend for states in establishment clause cases?

Thomas M. Fisher is the solicitor general of Indiana, which joined 14 other states and the governors of two states in an amicus brief supporting the administration in Trump v. Hawaii. [Note: The views stated herein are those of the author alone and are not attributable to the attorney general of Indiana or the state of Indiana.]

States have been told time and again that immigration is an exclusively federal issue and that states may not unilaterally intercede in immigration matters, even when state officials conclude that public safety is at stake. States are also frequent targets of establishment clause claims asking courts to enjoin facially neutral state action because an official acted with improper religious motivation.

Trump v. Hawaii, a challenge to the Trump administration’s September 2017 proclamation restricting entry to the United States by nationals of seven countries, most of which have majority-Muslim populations, brought these two state interests to the fore at the same time. A coalition of amici states — led by Texas but including Indiana and several others — submitted an amicus brief both urging that the president be permitted to take action on immigration in the name of national security (because the Supreme Court has precluded states from doing so) and arguing that suspicions about purported improper motivations cannot negate legitimate national-security justifications. The court’s decision is a win for this coalition of amici states on both counts. States care very much about separation of powers at the federal level, but it will be particularly interesting to see whether the establishment clause portion of the decision may be useful in state and local government cases.

In short, the court applied the deferential rational-basis test to conclude that, because the president plainly had a legitimate national-security rationale for Proclamation No. 9645, it is beyond the judicial ken to invalidate the proclamation as actually motivated by improper religious considerations. Given the scope of the claims, i.e., that they are directed at the president’s entire policy rather than at the admission of individual proposed immigrants, this mode of analysis carries substantial appeal. Overriding a consular decision precluding an individual’s entry into the United States on grounds of religious animus might be one thing; casting aside an otherwise valid national policy because the president had the wrong attitude is something else entirely. In that situation, how would the president ever be able to purge himself of improper animus so as to be able to carry out lawful policy? Could the next president carry out the same policy absent a record of animus? The possibility of creating such a scenario seems devoid of constitutional seriousness. Establishment clause claims based on an official’s motivations rather than results really do not scale well to the policy level.

The same might well be said when state and local officials are haled into federal court accused of carrying out otherwise permissible policies with improper religious motivations. So, will Trump v. Hawaii assist states with resisting such claims? The majority opinion gives states some reason for optimism, but also reason for pessimism.

The first clue that this method of analysis may not benefit state and local governments is the court’s dismissive characterization that the plaintiffs were “[r]elying on Establishment Clause precedents concerning laws and policies applied domestically.” There is a different standard applicable to foreign-facing laws and policies, the court seems to be suggesting. Indeed, the court explained, “[u]nlike the typical suit involving religious displays or school prayer, Plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad.” True enough, but if that matters only because the prayer and displays are domestic-facing rather than foreign-facing, states may be left out.

The next distinction is more general, but still a bit worrisome: The plaintiffs’ claim “accordingly raises a number of delicate issues regarding the scope of the constitutional right and the manner of proof.” It is not clear what the court means by “the scope of the constitutional right,” as that is a “delicate” concern in every novel establishment clause claim. And “manner of proof” can also be a “delicate” issue when religious displays are involved — see McCreary County v. American Civil Liberties Union of Kentucky and many lower court cases invalidating Ten Commandments displays. But then the court circles back to the critical point, which may ultimately help states as future establishment clause defendants. “The Proclamation,” the court observes, “is facially neutral toward religion” — unlike, one hardly needs to add, religious displays and school prayer. So, perhaps a religion-neutral state policy challenged on grounds of improper religious motivation may yet enjoy the same rational-basis treatment?

Not so fast. The court spends the next several paragraphs reviewing cases bearing on the admission and exclusion of foreign nationals before observing that the notion of applying narrow review to facially neutral government action in the face of establishment clause claims “‘has particular force’ in admission and immigration cases that overlap with ‘the area of national security.’” The court further explains that “special force” by reference to separation-of-powers concerns and the judiciary’s lack of institutional competency to gather evidence and draw inferences “on questions of national security.” But that may not leave states out in the cold. States may argue that federalism concerns have equal stature to separation-of-powers concerns in analogous contexts, and that the institutional competency of courts is no greater in many domestic contexts than here. So again, while many specifics of the opinion do not help states as future establishment clause defendants, a few of the general principles can be adapted to their cases.

Finally, when applying the rational-basis standard and explaining its limited scope, the court cited several domestic policy cases, including the state-and-local government cases Romer v. Board of Public Works of Maryland and City of Cleburne v. Cleburne Living Center Inc., for the point that rational-basis doctrine comes down to whether a connection exists between means and asserted legitimate ends, not evidence of bad faith (no matter how direct). In that regard, the president’s proclamation survived because courts may not second-guess the “effectiveness and wisdom” of the entry suspension. This is a garden-variety rational-basis argument that states employ every day in many contexts and that would work easily in their establishment clause cases. Again, adaptation to the state policy context should prove workable.

Ultimately, with regard to future establishment clause cases against state officials, Trump v. Hawaii provides a mixed bag. It would be odd for the court to borrow so heavily from cases governing domestic policy disputes to create a special establishment clause doctrine suitable only in foreign-policy cases. Yet states will face a big challenge in casting the court’s establishment clause decision as standing for something broader than deference to the president on matters of national security.