A recent speech by Attorney General William Barr has drawn heated criticism from some quarters (and praise in others). Most of the speech’s content is outside the Institute for Justice’s bailiwick. But I’ll focus on one part that isn’t—judicial engagement.
In Mr. Barr’s view, “the Judicial Branch” has been “the prime source of the erosion of separation-of-power principles.” Pointing to judges scrutinizing governmental motives in immigration cases, he said that “[t]he Supreme Court has traditionally refused, across a wide variety of contexts, to inquire into the subjective motivation behind governmental action.” In fact, he implied that “otherwise-lawful” actions are constitutional irrespective of governmental motive.
But the U.S. Supreme Court has, in fact, repeatedly held that the government’s motives often are relevant in determining whether its actions are constitutional. For example, in First Amendment cases, it is relevant whether the government has regulated speech “because of disagreement” with its message or whether regulation was “justified without reference to the [speech’s] content.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). Speech restrictions that fall into the former category are presumptively unconstitutional. And, to figure out whether restrictions are in that category, the Supreme Court “look[s] to governmental motive.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2228-29 (2015). (In Reed, the Supreme Court clarified that even where the government’s motive is innocent, speech restrictions that discriminate based on content are presumptively unconstitutional; but I digress.)
The Supreme Court scrutinizes governments’ motives for good reason. If it didn’t, federal and state governments could circumvent constitutional restraints by offering pretexts for their actions.
Our cases at the Institute for Justice are illustrative. For example, we are currently challenging a town’s food truck restrictions in Wisconsin state court. The town—Gibraltar—banned food trucks at brick-and-mortar restaurateurs’ behest. But, as Wisconsin courts have held, stifling economic liberty for economic protectionism’s sake is unconstitutional. See, e.g., State ex rel. Week v. Wisconsin State Bd. of Examiners, 252 Wis. 32, 36 (1947) (holding that a state’s “acting for the benefit” of a private chiropractic association was “not within the legitimate exercise of [its] police power”). Despite ample evidence that Gibraltar banned food trucks to help politically-connected restaurants, the town changed its tune after being sued. Now, it argues that it was just trying to protect public safety and the town’s character. Luckily, the Wisconsin Supreme Court has cautioned that courts “should receive with some skepticism post hoc hypotheses about legislative purpose . . . .” State ex rel. Grand Bazaar Liquors, Inc. v. Milwaukee, 105 Wis. 2d 203, 207 (1982). In other words, pretexts by towns like Gibraltar merit a grain of salt.
Now let’s imagine if courts instead ignored governmental motive. Governments would then be able to enact unconstitutional laws lining incumbent businesses’ pockets at their competitors’ expense simply by demanding that courts believe their post hoc rationales. In this world, governments could violate their residents’ economic liberties with impunity.
And it’s not just economic liberty that would be at risk. Consider our eminent-domain cases. Under many states’ laws, municipalities can take homes for “blight remediation” but not for private developers’ gain. One tragic trend we’ve seen is municipalities’ pretextual assertion that they are doing the former when they are really doing the latter. In Lakewood, Ohio, for instance, the city tagged a well-kept neighborhood as “deteriorating” in order to obtain eminent domain powers that would enable transfers to a well-heeled developer. Fortunately for Lakewood homeowners, the Ohio Supreme Court saw through the charade and said the city’s takings weren’t for “public use,” as the U.S. (and Ohio) Constitution require. Norwood v. Horney, 853 N.E.2d 1115, 1138 (Ohio 2006) (“There can be no doubt that our role—though limited—is a critical one . . . including review to ensure that the state . . . proceeds fairly and effectuates takings without bad faith, pretext, discrimination, or improper purpose.”) (emphasis added).
Let’s again imagine an alternative universe where governmental motive was irrelevant in court. Governments could successfully use innocuous-sounding post hoc justifications for eminent domain—like “blight remediation”—with private developers waiting in the wings to take homeowners’ property. As with economic liberty, property rights would be in danger.
All that said, in some contexts, Mr. Barr is right: unfortunately, all too often courts do credit governments’ pretextual excuses for their actions. As we at IJ could attest, though, this approach would threaten our clients’ rights everywhere from Gibraltar to Lakewood. To avert this fate, courts must examine not just what governments do, but also why.
Milad Emam is an Attorney with the Institute for Justice