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  • Max Stearns

The President is an "It," not a "They"

Harvard Law School's Emeritus Professor Alan Dershowitz defended President Donald Trump's immigration ban against the ruling of the Hawaii federal district court judge, Derrick Watson, granting a nationwide Temporary Restraining Order (TRO). The full text of the opinion is here: Professor Dershowitz's criticized Watson in large part based on the judge's reliance on campaign statements in which Donald Trump promoted a Muslim immigration ban. The opinion addresses several legal questions involving standing, the establishment clause, equal protection clause, due process, the TRO standard, among others. Here I want to focus on the central difficulty that Dershowitz claimed, both in a blog post, linked here:, and on a CNN interview: linked here

In the blog, Dershowitz states:

"Under that reasoning, had the identical executive order been issued by President Obama, it would have been constitutional. But because it was issued by President Trump, it is unconstitutional. Indeed any executive order issued by President Trump dealing with travel from Muslim countries would be constitutionally suspect because of what candidate Trump said. In my view, that is a bridge too far. It turns constitutional analysis into psychoanalysis, requiring that the motives of the president be probed."

Professor Dershowitz claims that it is problematic to base a judicial ruling on intent because doing so creates an anomaly: A legal rule issued by one President, say Barack Obama, without an illicit intent, might be upheld, whereas an identically worded legal rule issued by President Trump, coupled with an illicit intent, might be struck down.

The Supreme Court has grappled with this problem in various settings, but typically in the context of statutes. A critical difference is that in construing statutes, the Court is confronted with the problem of combined, even inconsistent, motives. In race cases involving gerrymandering of voting or school districts, for example, if we find evidence of an illicit intent, the case might come out differently from if we do not find such evidence. Various Justices, notably including John Paul Stevens and Lewis Powell, have criticized reliance on evidence of subjective intent for this very reason, expressing concern for the potential doctrinal inconsistencies that are apt to arise. But the context matters: those cases typically involve state legislation affecting race.

In a famous article, Harvard Political Science Professor, Kenneth Shepsle, stated "Congress is a 'They,' not an 'It: Legislative intent as an oxymoron,'"12 International Review of Law and Economics 239-56 (1992). A link to the full text is here: Shepsle was right, of course, and the difficulty of discerning the intent of a group acting collectively is an age-old epistemological problem.

Candidate Donald J. Trump, and now President Trump, however, is better viewed as an "it" not a "they." He is an individual actor, and it is entirely fair and reasonable to ascribe as his intent express statements he made during the campaign and as President addressing precisely what he aims to do. Indeed, the law routinely ascribes consequences to determinations of individual intent. In criminal law, for example, the very same conduct, referred to as the "actus reus," can result in different sanctions depending on the actor's mental state, or "mens rea." The same actions lead to different levels of crime depending on whether the actor was merely negligent, or instead acted recklessly, with knowledge, or purposefully. Consider, for example, the difference between negligent homicide and first degree murder. Our criminal justice system allows the trier of fact, often a jury, but sometimes the judge, to make the requisite finding of mens rea when deciding questions of innocence or guilt respecting particular charged offenses.

In the context of race, the Court also allows intent to be considered, sometimes based on proof of subjective intent, and other times based on objective factors that tend to correlate with an illicit intent. These include, for example, districting lines or other practices that seem bizarre or that otherwise appear motivated to isolate particular groups for adverse treatment. In its equal protection jurisprudence, the Court has not settled on a single approach, and there is little doubt that proving intent is a challenge. Typically, the real question becomes who has the burden of proof when there is some persuasive evidence of illicit intent respecting a subgroup of the larger body of decision makers. Ascribing intent to a collective body is a thorny problem. Ascribing intent to an individual, especially one who has made his intent clear, is not.

I do not offer any prediction as to the ultimate fate of the travel ban. I respectfully disagree with Professor Dershowitz, however, that Judge Watson erred in relying in his ruling on Mr. Trump's intent.

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