Abstract

Excerpted From: Ahilan T. Arulanantham, Reversing Racist Precedent, 112 Georgetown Law Journal 439 (March, 2024) (332 Footnotes) (Full Document)

Seven years ago, the Trump Administration decided to terminate the lawful immigration status of approximately 400,000 people from six countries by ending their designations for Temporary Protected Status (TPS). Most of the people targeted by the Administration's decisions had lived here lawfully for decades. They had stable jobs and deep ties to this country, as well as several hundred thousand American children, many of whom were teenagers.

In response to the Trump Administration's decision, a bipartisan group of Senators drafted a legislative compromise that would have given the TPS holders lawful permanent residence in exchange for various restrictive immigration measures. The Senators went to the White House to present their proposal to the President. In a now-infamous meeting, Trump rejected the proposal, saying, “Why are we having all these people from shithole countries come here?” Then, he “suggested that the United States should instead bring more people from countries such as Norway.”

I was already working intensively on litigation to challenge the Administration's TPS decisions when I heard news of the President's statements. I was of course appalled. But it also occurred to me that the statements might help us in court. While the President had repeatedly expressed racist views against immigrants before, he had now specifically denigrated the people I represented. Surely this statement would make it far easier to challenge the decisions themselves as motivated by racism, and therefore unconstitutional. How could the government possibly refute this evidence?

Several months later, I had my answer. In briefs responding to our lawsuit challenging the TPS termination decisions, the government argued that normal antidiscrimination law did not apply to our case because it arose in the immigration context. In that realm, the government's lawyers contended, courts must apply an extremely deferential form of rational basis review when assessing discrimination claims. Under that approach, courts must ignore all evidence of discriminatory motive other than that which appears within the four corners of the official governmental decisions under challenge. To support this view, the government cited a line of cases originating in the virulently racist Chinese Exclusion Era.

Again I was appalled, though not surprised. I have spent much of the last twenty years representing noncitizens challenging various federal immigration enforcement laws and policies, including on race discrimination grounds. Time and time again over my years of practice I have seen government attorneys rely on cases from the Chinese Exclusion Era to support their positions, despite the racist reasoning and rhetoric in those cases. Ironically, government attorneys often cite these cases even when defending against claims--as in the TPS case--that the government has engaged in race discrimination. Courts have often accepted those arguments, occasionally even citing the Chinese Exclusion cases themselves.

Of course, like other immigrants' rights litigators, I make arguments for distinguishing these precedents on both factual and doctrinal grounds--some stronger than others. But it has long felt strange to me that I have to distinguish them at all. Over time, I have developed a strong sense that there must be something fundamentally wrong about the fact that our law still accords precedential weight to these blatantly racist cases. If a judicial decision is obviously motivated by racism, shouldn't that be reason enough to disregard it? As this Article explains, the answer is “yes.”

The Supreme Court has long read the Constitution to prohibit state action motivated by racial animus. It read the Fourteenth Amendment to contain that prohibition in 1873, applied it to facially neutral rules motivated by discriminatory purpose in 1886, and clearly stated that the prohibition applied to the federal government by 1896. Under the modern version of that rule, a court considering a challenge to a facially neutral governmental action alleged to be motivated by racial animus can look at a large body of evidence to determine whether the allegation has merit. If invidious race discrimination did play a role, the court must strike the action down unless the government can show it would have made the same decision even without the race-based intent.

Although courts have applied the Constitution's prohibition on state action motivated by racial animus to various forms of governmental decisionmaking--including court orders and other judicial acts--they have not applied that prohibition to their own precedent. The omission is somewhat anomalous. Nothing in the Constitution's text or the cases applying it suggests that judicial decisions are exempt from this basic constitutional prohibition. Indeed, to some it might seem obvious that a court decision motivated by racism should lack any precedential value, as individual Justices across the ideological spectrum have suggested from time to time.

Yet the Supreme Court has never actually said that. It has never held that courts must disregard prior court decisions that were themselves motivated by racial animus, or even stated that the prohibition against such discrimination should inform how courts apply the doctrine of stare decisis.

This Article argues that the Constitution requires such a principle and explores how it would work. I argue that the prohibition against invidious race discrimination should apply to judicial decisions by stripping cases motivated by racial animus of precedential force. When one party relies on a precedent infected by racism, the other should be able to challenge reliance on that precedent as inconsistent with the Constitution's prohibition against discrimination. If the court agrees, it should disregard the precedent.

The principle I advocate offers the possibility of disrupting structural racism embedded in various areas of law. In a common law system built on stare decisis, rules enacted with invidious racist intent may naturally persist for decades or more, even where the lawyers and judges following them today harbor no present racist intent. Such rules will continue to profoundly influence our jurisprudence until we adjust stare decisis doctrine to require courts to take account of a rule's racist origins. In other words, absent an exception for racist precedents, stare decisis doctrine itself functions as a structure that perpetuates racism.

Adopting a new exception to stare decisis for cases motivated by racial animus would give lawyers and judges a reason to examine the origins of many racist precedents that would otherwise be left undisturbed. It would also encourage others within the legal system to confront its long immersion in the racism that has plagued our nation's history since its founding. If embraced fully, this proposal could give advocates and judges a new tool to help eradicate racism in our precedent and more aggressively challenge its ongoing effects.

This Article concludes by illustrating how the principle I advocate would work in the immigration context. As my analysis reveals, old cases plainly motivated by racism continue to have significant influence in immigration doctrine. Reversing racist precedent in that area would profoundly alter the way courts analyze several highly controversial modern immigration policies.

Immigration law is hardly unique insofar as it remains infected with rules first adopted in cases motivated by racial animus. Various other areas of law are also built on such precedent. Although I do not analyze other areas of law in detail, the argument advanced here would permit lawyers and judges to utilize the research of scholars who have documented the racism embedded in various areas of legal doctrine to attack precedent in those areas. In addition to constitutional immigration law, scholars have documented racism embedded in the cases upholding the so-called Japanese-American “internment,” the law governing the status of people living in U.S. territories, federal Indian law, sovereign immunity doctrine, and cases involving slavery, among other areas of law. Moreover, the doctrinal principle I describe likely also could be applied to cases manifesting other kinds of discrimination--including most obviously gender discrimination is prohibited by the Constitution but nonetheless embedded in case law. Scholars have already advocated overruling cases in many of these areas. This Article provides a doctrinal foundation for doing so grounded in generally applicable constitutional law and stare decisis doctrine.

In Part I, I explain my proposal by reference to antidiscrimination law and extant stare decisis doctrine. Courts are already familiar with the concept of invidious discrimination, as they routinely apply it when evaluating discrimination claims under current statutory and constitutional doctrine. Although there are many thorny questions concerning the scope of the antidiscrimination constraint, including the extent to which antidiscrimination law should be understood to prohibit laws that have a discriminatory impact and other forms of arguably discriminatory conduct, the theory I describe is agnostic as to such questions. For purposes of illustrating the theory, I focus solely on invidious race discrimination by state actors, as that particular form of discrimination is unquestionably prohibited by the Constitution. Part I ends by discussing several concurring opinions in recent Supreme Court cases that have already endorsed-- albeit implicitly--the core rationale for the argument I advance here. Those opinions have presumed that cases infected by racism lack precedential weight, although they have not explained why.

In Part II, I consider various objections. I first consider a set of objections that challenge whether the constraints created by antidiscrimination law are properly analogized to court cases. I refute those objections through analysis of longstanding doctrine prohibiting invidious race discrimination. That doctrine is best read to require the new exception to stare decisis that I propose. Courts have long applied the prohibition against discrimination to facially neutral statutes and other enactments, finding such laws unconstitutional if motivated by discriminatory animus despite their facial neutrality. Courts have also already applied antidiscrimination doctrine to court orders and judicial acts such as jury selection, as well as to a great variety of other forms of state action analogous to court decisions. And they have applied the prohibition against the federal government, even though, by its terms, the Fourteenth Amendment's Equal Protection Clause applies only against the states. Given those features of current doctrine, it should be clear that there is no doctrinal barrier to treating federal court decisions motivated by racism as lacking in legal authority, just as we treat statutes and other enactments motivated by racial animus. If the Constitution requires courts to reject statutes and other enactments infected by invidious race discrimination, thereby stripping them of legal force, it requires the same for cases infected by racism.

I close Part II by discussing what I view as the two most serious conceptual difficulties with my proposal. First, how would courts disentangle the widespread racism of earlier eras from the particular decisions handed down during those times? Whatever one thinks of more recent decisions, there is likely to be widespread agreement that many cases decided prior to, say, the 1950s were decided by judges whom we would now describe as holding racist views. Should all the cases they authored lack precedential weight? Second, assuming we can identify some earlier cases that should lack precedential weight because they were motivated by racism, how should we treat what I call “second-generation” cases--later cases that rely on that earlier precedent but contain no explicit manifestation of racial animus?

I answer these questions by exploring how my principle might apply to two particularly infamous cases: Hirabayashi and Korematsu. Those cases upheld the forcible relocation and then mass incarceration of Japanese-Americans during World War II. As my discussion of them reveals, applying the principle I advocate would not always be straightforward--undoing structural racism buried deep in our legal system rarely is. Nonetheless, existing antidiscrimination law already suggests several approaches to resolving the concededly thorny problems my proposal raises.

Part III illustrates how my proposal would work in more detail by using immigration law as an exemplar, focusing on issues I have litigated. I describe how applying the prohibition against discrimination to racist precedents would require courts to reject two important cases decided during the Chinese Exclusion Era--Chae Chan Ping v. United States and Fong Yue Ting v. United States. Immigration law scholars have long criticized these cases as motivated by racism. I describe them in some detail to establish which particular propositions in them rest on racist reasoning. I then subject them to my proposed antidiscrimination exception to stare decisis, showing how it would not only serve as a strong foundation from which to reject several holdings in these cases, but also require courts to look anew on much of the extensive constitutional immigration law that courts have built upon them through “second-generation” (and later) cases.

Part III ends by demonstrating how eradicating racism from constitutional immigration law would fundamentally alter the legal landscape involving several contemporary immigration issues. I consider two examples. First, controversial modern disputes over the discriminatory treatment of Haitians, Afghans, and others seeking refuge in this country--as compared to Ukrainians--look radically different without the long shadow cast by Chae Chan Ping. Second, ongoing constitutional challenges to the federal government's prolonged incarceration of immigrants with pending removal cases appear very different once the racist propositions from Fong Yue Ting have been excised from our doctrine.

I close with some thoughts on how other actors--beyond litigants and courts-- could use my proposed exception to stare decisis to advance the project of reversing racist precedent, and how comprehensive implementation of my proposal could allow us to take a crucial step on the road to eradicating racism from our legal system.

[. . .]

The Constitution requires courts to reverse racist precedent. In practice, this means applying the Constitution's prohibition on decisions motivated by racial animus to prior court decisions, thereby establishing a new exception to stare decisis. Under that exception, courts should not afford precedential force to cases motivated by racism. Where those cases were cited by later cases, courts should not afford precedential force to the second-generation cases, at least where the later case does not rest on independent grounds. Adopting this exception would allow stare decisis doctrine to cease functioning as a tool that furthers structural racism. And it would give lawyers and judges a tool they could use to cabin the ongoing influence of racist cases.

I have focused on how the rule I have described would be enforced by courts in response to arguments raised by litigants. Although beyond the scope of this Article, it is also worth considering how other actors could play a role in implementing the proposal I advocate. Just as the President, acting through the Attorney General, may choose not to defend statutes they view as unconstitutional from time to time, so too might government attorneys choose not to rely on racist precedent. Members of the academy could also play a substantial role (as they already have) in collecting and analyzing the relevant historical evidence concerning which precedents are infected by animus, particularly where the need to uncover such evidence arises on appeal where courts' factfinding capacity is more limited. Nor need we rely only on litigants and individual professors to undertake such work. One could imagine a commission charged with analyzing various areas of law to assess where racist precedent continues to have a substantial effect on our law.

I have illustrated how my proposal would work by applying it to important cases in constitutional immigration law. That analysis illustrates how courts should consider anew the constitutional law governing race discrimination in immigrant admission and exclusion policy and the constitutional law authorizing incarceration under the immigration laws. The radical changes in how courts would analyze those issues were they no longer reliant on racist precedent offer a window into how my proposal could bring about sweeping changes to the law not only in the immigration context, but also in other areas. Large bodies of existing scholarship document the racism undergirding various areas of law. In all of them, lawyers and judges should be asking whether the rules they are applying have been infected by racist precedent.

This Article has brought together various strands of relevant doctrine to shed light on a path we can take to dismantle one crucial aspect of structural racism embedded in our legal system. The labor of eradicating the ongoing effects of cases motivated by race discrimination from our legal doctrine would no doubt be painstaking for lawyers, courts, and others. But in this respect it would be no different from the task of confronting structural racism elsewhere. Reversing racist precedent is one difficult but vitally important step on the road to building an antiracist future.

Professor from Practice, UCLA School of Law.