Decompiling Oppression #137
Sam McVeety
With so much attention on the courts these days, I thought it would be timely to look at a few important concepts that are showing up across many cases. Specifically, I'm thinking of the concepts of due process and rational basis review. Both of these are crucial facets of the baseline constitutional guarantees afforded to everyone. This universality is important, because these are designed to be safeguards, regardless of whether a group is favored or disfavored politically. Even if the current Court jettisons one or both of these ideas, they are still critical touchstones of what a just society should look like.
This might make more sense if we dive into a few examples. It would obviously be bad if someone in government could just wake up one day and decide to seize my property, or detain me in another state. Due process is the barrier here: a legal guarantee that the government can't just take arbitrary actions without following a specific process, especially when those actions relate to life, liberty, or property interests. Usually, this process consists (at minimum) of notice and a hearing: communication of the planned action, and a chance for those affected by it to dispute the outcome.
This includes things that the government gives out: Goldberg v. Kelly was a landmark due process case, where the Court recognized that individuals receiving government benefits had a property interest in continuing to receive those benefits, and therefore the government couldn't arbitrarily cut them off. If someone's benefits are being cut off, they must receive a notification and the opportunity to appear in court to dispute the matter. Although it's a vastly different scale, the same principle applies to Harvard: the President cannot unilaterally revoke Harvard's non-profit status (it is, in fact, a criminal act).
Importantly, everyone on United States soil has a recognized right to due process. The specifics of what due process requires vary by circumstance, but the baseline right is universal. This is part of what is so exceptionally dangerous about many of the current actions on immigration, which assert broad removal powers, irrespective of the established procedures for maintaining immigration status. It is telling that a 7-2 majority of the Court froze recent deportation actions; bypassing due process is essentially an assertion that the executive branch's actions are exempt from any sort of legal review.
Once a matter is actually being heard in court, rational basis review is the default test that a given action must pass. It's an exceedingly low bar: there must be a legitimate state interest that is rationally connected to the law or ordinance in question. Even so, the word rational isn't inert; the connection cannot be arbitrary or capricious. The government can't pass a tax on people named Sam simply because it wants to, unless there is some evidence that Sams as a class have a particular reason for the government to tax them.
This baseline requirement has recently been a backstop against arbitrary actions against LGBTQ+ people. Back in 1996, the Court held in Romer v. Evans that the State of Colorado couldn't have a state constitutional amendment banning local non-discrimination ordinances (preemption!), because there was no rational reason to do so. This case also illustrates the relationship between rational basis and another concept: animus. If a court cannot find a rational basis for an action, it often concludes that the only possible explanation was overt animus.
Three decades later, we have Talbott v. USA, challenging the Trump administration's ban on transgender service members. After hours of legal arguments, the federal government wasn't able to produce any compelling evidence that there was a rational reason for the executive order. District Judge Ana Reyes issued a blistering ruling characterizing the order as "soaked in animus", and blocking it indefinitely.
It's a strange state to be in: rational basis review and due process often feel like only the thinnest of protections, and yet the administration apparently can't rouse itself to even clear these low hurdles. At least some of this belies the underlying weakness of their position, where they can't produce a single witness or marshal relevant facts to support these cases. Still, the danger is very real, and something that we must resist at every turn.
Here are this week's invitations:
Personal: When others make decisions that affect you, what processes do you hope they follow?
Communal: What might an approach similar in spirit to due process mean for our relationships with each other, especially when we are feeling hurt?
Solidarity: Support the Jewish Coalition for Immigrant Justice NW and their work to advance immigrant justice and domestic policy, following the leadership of impacted communities.
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