Reverse Engineering Bogus Rationales for Discrimination

by Palm Center | July 8, 2019

The Department of Justice is now citing the transgender-military and Muslim-ban cases as authority in the census case, in support of the argument that it should be allowed to reverse-engineer new justifications for discriminatory policy when its rationalizations fail the first time, and also cut off any discovery into the old justifications. 

This tactic of coming back after-the-fact with “better” justifications for policy is much broader than just transgender military policy. It has become the Trump administration’s way of doing business across the board.  

The explanation for this pattern of reverse engineering is open to interpretation. One possibility is that the administration first offers outrageous justifications for discrimination because the policies it seeks to rationalize (Muslim ban, transgender ban, citizenship question) are designed to appeal to resentment voters. Then, federal courts weigh in and prohibit clearly unconstitutional justifications, thus forcing the administration to reverse-engineer its rationales if the policies are to survive judicial review.

Another possibility is incompetence and hubris. Perhaps the administration doesn’t know how to make policy properly under the law, and doesn’t care. And by now administration officials are thinking, “Why put a lot of effort into it when we can take a shot, get sued, and then the courts will tell us exactly how much will be enough to squeak by.” 

Whatever the explanation, this scheme needs to be called out, because each time it works, it makes the next time easier.