Equivocations in Mullin v. Doe

Does the Ruling Map onto Doctrine?

In Mullin v. Doe, the Supreme Court controversially upheld the Trump administration’s termination of Temporary Protected Status against an equal protection challenge that the termination was unconstitutionally motivated by race. Putting aside Justice Thomas, who has written that any equal protection norms that bind the federal government apply only to U.S. citizens, the other eight Justices treated this case as an application of normal equal protection principles.

The majority, in broad strokes, relied on its view that it was quite plausible that the administration would have taken the relevant actions anyway, in a counterfactual world where a country with a different racial makeup were up for review. The dissent highlighted the majority’s unwillingness to acknowledge what was actually going on. These positions might seem to replay some well-known cases from previous eras, such as Trump v. Hawaii, Palmer v. Thompson, etc.

But upon closer inspection, Mullin contains two striking wrinkles, which might be related.

The first is that the majority opinion does not just say that there could be a race-neutral explanation for Haiti’s status termination. Though the introduction to the opinion does say that, asserting “a strong, race-neutral explanation for Haiti’s termination,” the body of the opinion makes a different and perhaps stronger claim: that there is “a strong, race-neutral explanation of these officials’ statements” (emphasis added). The difference here is between a legal action and the statements regarding those actions. Rather than admitting that the President expressed racist viewpoints but also implemented a legitimate policy choice, the majority suggests it is unproven that the President’s expressed viewpoints are even racist. This could be, not unfairly, charged as an example of the majority’s extreme efforts to avoid impugning the President. Even more cynically, the Court could be viewed as twisting the record in order to rule in favor of the President’s immigration policies.

But there is another consequence of, and thus perhaps a second explanation for, the majority’s reaching for this point, and it relates to another criticism made by the dissent — namely, the majority’s failure to follow the letter of Arlington Heights. (The parties had also debated whether traditional equal protection principles applied at all, or whether a much looser standard like that in Trump v. Hawaii applied instead.)

Under the Arlington Heights test, formally speaking, there are two steps. At the first step, the plaintiffs have the burden of showing that race was “a motivating factor” in the government’s decision. If they show this, the burden shifts to the government to show that “the same decision would have resulted even had the impermissible purpose not been considered.” Some points in Mullin may indirectly speak to that inquiry, such as when the Court posits that the administration is critical of TPS and, in fact, has terminated every TPS designation that has come up for renewal. Nonetheless, Mullin’s analysis seems to stay at the first step, to the extent that it applies Arlington Heights at all.

Now here is how the two points intersect. If the majority is right that there is a race-neutral explanation not only for the policy, but for the putatively racist statements themselves, that would justify deciding the case at Arlington Heights step one. Deciding the case at step one allows the Court to avoid venturing into territory that was not really briefed by the parties. It is also a doctrinally lighter lift, because the plaintiffs bear the burden at step one while the government bears it at step two. So the Court’s framing decision also may ultimately be driven by a conviction that the administration should or would have won at step two.

The Court’s equivocation could be viewed as a kind of strategic ambiguity. Readers are introduced to both rationales, but neither is clearly relied on. Indeed, for the casual reader they are not even clearly disentangled. The Court is able to reach what it regards as the legally correct result, without antagonizing the President. This ambiguity may be a product of uncertainty about the extent to which immigration should be subject to ordinary constitutional principles. It may reflect internal disagreement among members of the majority. Or it may be a product of the interim docket — although the Court issued a signed published opinion after oral argument, in form it adjudicated only the plaintiffs’ likelihood of success on the merits. But whatever their source, the equivocations in Mullin make the opinion’s precedential import in future cases quite unclear.