How Lawyers Should Use Trump’s Racism Against Him

Bigots are mentally addled people. But it’s not so much a cognitive or IQ problem they share in common; it’s more a stew of intellectual sloth, chemical imbalance, personality disorders, and their culture’s celebration of prideful ignorance.

All this is to say that, as disturbed as they are, racists can still be clever. And they are a stubborn lot too; whenever racists lose a battle, they regroup and try to find other ways to achieve their ends — kind of how rats and cockroaches will find another way into a house after their favorite hole gets plugged.

So after courts finally got serious about enforcing the Equal Protection Clause — around the 1950’s and thereafter — racists were wily enough to change their tactics. Up until then, they’d been given license under an abominable case called Plessy v Ferguson (1896) to overtly discriminate against ethnic minorities. But that case was overruled in 1954 by Brown v Board of Education, and Plessy’s “separate but equal” doctrine became another mound in the stinky landfill that is our nation’s history of tribalism.

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Before Brown, when racists wanted to target African Americans, they did so explicitly: “Black people may not [fill in the blank].” But after Brown, as it became clear that laws that overtly and explicitly targeted people based on their ethnicity would be struck down under what courts call “strict scrutiny” (a test that requires the government to show that its law, rule, or policy is absolutely necessary to serve some compelling interest, like saving lives), racists began using the levers of majoritarian power to target ethnic minorities using laws that — on their face — were neutral as to ethnicity.

Take, for example, poll taxes or literacy tests for voting. Those laws did not explicitly target ethnic minorities, but they disproportionately affected ethnic minorities, and they were designed to disproportionately affect ethnic minorities. This diabolical mischief is still going on today as the Republican Party systematically racially gerrymanders voting districts; purges voting rolls; and enacts laws that impose exacting voter ID requirements or disenfranchise people convicted of crimes.

In a case called Washington v Davis (1976), the US Supreme Court considered what test to apply to a law that has a disproportionate effect on some ethnic group but is neutral as to ethnicity on its face. The Court ruled that, before it would apply strict scrutiny to such a law, the challenger of the law would have to show not just that the law had a disproportionate impact on a certain ethnic group, but also that the intent of whoever drafted the law was to discriminate against that group. Lawyers summarize these elements as 1) disparate impact, and 2) intent. (For anyone who cares to know, this is called an “as-applied attack” under the Equal Protection Clause.)

Many laws take the form of rules and policies (which are supposed to be consistent with congressional statutes) that are created by federal agencies under the control of the president of the United States. And every one of those rules and policies created during the Trump presidency just got easier to attack under the Equal Protection Clause.

As to disparate impact, that is a straightforward matter: statistics either show that a rule or policy disproportionately affects an ethnic group or they don’t.

The more complicated proof problem for lawyers is showing intent to discriminate. Absent direct evidence from the mouths of those who adopt and implement rules and policies, lawyers are left to use circumstantial evidence — like the history surrounding a rule’s implementation, procedural irregularities in creating a rule, or a pattern of selective enforcement in applying a rule — to show bad intent.

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But lawyers won’t need circumstantial evidence anymore to show that Trump-era executive-agency rules and policies reflect discriminatory intent and animus. The White House — the utmost symbol of executive rulemaking authority — is now populated by overt racists, white supremacists, and fascist sympathizers (think Bannon, Miller, and Gorka: the Three-Headed Demon of the West Wing) who have flat-out identified themselves as rank bigots. And the President himself has opened his big mouth and belched out the truth:

  • that he sees associates of Nazis and racists as “good people”;
  • that he sees the racist Confederate traitor Robert E. Lee as in league with George Washington and Thomas Jefferson;
  • that he sees civil rights advocates as violent, uppity agitators;
  • that he sees no moral difference between a racist and a person opposing a racist, except maybe that racist protesters are victims while counter-protesters are aggressors; and
  • that he thinks the rabid racist and anti-Semite Steve Bannon is a “good man.”

We can load all that on top of Trump’s explicit targeting — during his presidency — of Muslims, non-citizens, the LGBTQ community, and, more specifically, transgender people.

Every rule or policy promulgated by this administration is tainted with the stink of bigotry and hatred. We have reached the point where lawyers can justifiably argue that every rule or policy adopted during the Trump presidency, if it has the effect of injuring ethnic or religious minorities, was intended to have that effect. And direct evidence exists to prove it. In fact, we’ve reached the point where arguing otherwise would be frivolous.

Trump’s words at his Tuesday press conference will reverberate not only in the moral universe, but in the legal universe, too.

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