Written with Ariel Porat
This week the Trump administration is supposed to issue a new travel ban executive order. The old one was blocked by courts because of two constitutional infirmities that were individually weak—but, we think, collectively powerful. This raises an interesting jurisprudential question: could two legal claims, none of them standing alone sufficient for granting a legal remedy, nevertheless justify such a remedy if made in the aggregate? Should "normative aggregation" be applied to this case?
The States argued that the prior Order infringed Fifth Amendment procedural due process rights and rights against religious discrimination, protected by the First Amendment and the Equal Protection Clause. The Court of Appeals for the Ninth Circuit, while upholding the District Court decision to issue a temporary restraining order ("TRO"), left open the question whether the Order constitutes infringements of constitutional rights of ALL persons subject to the Order.. Furthermore, in discussing the religious discrimination challenge, the court, while stressing that facially neutral language should not shield the Order from being challenged on the basis of intention to discriminate against Muslims, left open the question whether such intention can be established. A district court in Virginia later held that animus was at least plausible.
In an academic paper published a few years ago, we proposed a theory of normative aggregation of claims. The intuition underlying our theory is the following: if one has two (or more) claims against a defendant, where each of them standing alone does not reach a threshold beyond which a remedy is justified, sometimes the two (or more) claims combined reach such a threshold and justify a remedy. For example: if A rescinds a contract with B based on both "almost" material breach and "almost" material mistake, even if materiality (of breach and mistake, respectively) is a condition for rescission, A’s rescission might be valid, because the two bases for rescission, combined, justify it. In this latter case there is enough "contractual blameworthiness" on the part of B, and enough "contractual harm" on the part of A, to justify rescission.
An analogical argument is applicable to constitutional contexts: a statute, or an executive order, that "almost" violates two or more provisions of the constitution might be struck down even if each "almost violation" standing alone is not sufficient for this.
There is precedent for this argument. In Employment Division v. Smith, 494 U.S. 872 (1990), the Supreme Court upheld a statute denying unemployment benefits to a person who had illegally used peyote in a religious ritual. The Court held that any “neutral” and “generally applicable” law survives constitutional challenge under the Free Exercise Clause even if it incidentally burdens religious practice. However, the Court also recognized a “hybrid” exception. Where a plaintiff can show that a neutral law burdens both religious practice and another constitutionally protected activity, the law will be struck down unless the government can show a compelling state interest. (The Court, did not apply the hybrid exception to the plaintiff’s claim, presumably because the plaintiff alleged that only one constitutional norm was violated).
The hybrid rights exception fits our theory of normative aggregation. If the normative aggregation concept is applied to President Trump’s Executive Order, aliens who might fail in challenging the Order on either due process or religious discrimination grounds alone might nevertheless succeed by challenging the Order based on the aggregation of the cliams. While neither of the claims, standing alone, reaches the threshold required for a remedy, the two claims combined might reach such a threshold.
The constitutional policy is easy to understand. We might think that a temporary travel ban that burdens people from Muslim countries could be justified, despite unequal treatment of people on the basis of religion, by even a moderate security risk. We might also think that a travel ban with weak procedural protections could be justified by an emergency. But where the ban both burdens a particular religion and does so without giving people sufficient procedural protections, the security justification must be significant rather than moderate.