Courts have historically struggled to consistently consider extrinsic evidence of animus and bias in immigration cases. In two key cases concerning challenges to restrictive immigration policies of the Trump Administration—Trump v. Hawaii and DHS v. Regents of the University of California—the Supreme Court shied away from considering numerous examples of former President Trump’s discriminatory rhetoric and public comments of religious and racial animus that would challenge the constitutionality of the policies. Instead, the Court invoked the historically prominent deference to the executive branch’s immigration power and to the interest in national security. However, the Court’s quick dismissal of extrinsic evidence of biased comments departs from compelling legal precedent. In multiple previous cases concerning immigration and other matters, courts have looked beyond the record at public statements made by high-ranking government officials involved in the promulgation of policies that became the subject of legal challenges. Thus, courts’ inability to consider extrinsic evidence of animus stemming from former President Trump exposes a weakness in the existing legal analytical framework and suggests the need for an alternative test. Deference to national security should not justify excluding entire categories of evidence that may reveal the unconstitutionality of an immigration law. To address these shortcomings, this Comment proposes a new factors test to assist courts in considering how much weight to give to external statements of bias and animus in immigration cases. Courts should weigh five key factors: (1) the identity of the speaker, (2) the temporal proximity between the biased statement and the challenged government action, (3) the scope of the statement’s entry in the public sphere, (4) the frequency of the statements, and (5) whether a reasonable observer would view the government action as enacted because of animus toward a particular protected class. In a post-Trump era where unbridled political rhetoric has been normalized, use of this new test will allow courts to deal with overt statements of bias more consistently and avoid upholding discriminatory immigration policies under the guise of national security.
Bias and Immigration: A New Factors Test to Examine Extrinsic Evidence of Animus in Immigration Cases,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol71/iss1/2