African American youths marched in front of a segregated swimming pool in Cairo, Illinois, on July 23, 1962, protesting the all-white policy of the pool. AP

To defend its executive order, the Trump administration favorably cited a 1970 Supreme Court case that supported separation of races in a swimming pool in Mississippi.

As the Trump administration defends its so-called Muslim ban in court, it’s relying on an old Supreme Court ruling in favor of racial segregation of public spaces.

On Monday, the U.S. 4th Circuit Court of Appeals heard oral arguments on President Donald Trump’s revised executive order banning the entry of visitors from six Muslim-majority countries, and temporarily suspending refugee admissions. The government’s counsel argued to reinstate the ban, which has been blocked by lower courts, citing a 1970 Supreme Court ruling that essentially condoned Jackson, Mississippi’s refusal to integrate its public swimming pools.

To understand the link between the two cases, let’s step back for a moment into post-Civil Rights Act America, when public pools were arenas for the backlash against integration. In Jackson, instead of integrating its pools, as the law required, the city council decided to close them down entirely. Their argument, that racially diverse pools would jeopardize public safety, was a common stance of municipalities holding on to the last dregs of segregation—and it’s one that endures today. In 1960s Jackson, African American residents sued, and when the lower courts ruled in favor of the city, the matter was taken up by the Supreme Court.  

In his arguments in front of the chief justices, Paul A. Rosen, the counsel for the plaintiffs in Palmer v. Thompson, said that the purpose behind the pool closings was “not in dispute.” “[It happened] solely because they were told that black and white bodies must touch: that was the catalyst, that was the action which closed these pools,” he said.

But that didn’t sway the Supreme Court. In a 5-4 decision, the court essentially said that it would ignore the motive behind the city leaders’ actions, which were “extremely difficult” to gauge. Instead, the court said it had to judge the action itself. From the majority opinion:

There is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.

Today, the Trump administration is asking the court to apply that same standard: judging the travel ban on its face while ignoring the president’s motives for signing it. In International Refugee Assistance Project ("IRAP") v. Trump, civil liberties lawyers representing the plaintiffs have pointed to the president’s explicit call for the “total and complete shutdown of Muslims entering the United States,” and his allies’ statements confirming that goal. In their view, this is clear evidence that the order has been fueled by an animus against Muslims, rather than a benign concern for national security—and that’s why it should be blocked. Lower courts have agreed.

In Monday’s two-hour hearing, the administration’s lawyer argued that, on its face, the executive order did not specifically target a religious group. Citing Palmer, the administration wrote in its brief that searching for intent “is fraught with practical ‘pitfalls’ and ‘hazards’ that would make courts’ task ‘extremely difficult.’” During the hearing, some judges brought up these “pitfalls.” Judge Paul V. Niemeyer asked an attorney from the ACLU how far back they would need to go if they decided to evaluate intent. Did they need to sift through Trump’s college speeches? Or track his discussions with business partners?

But Palmer is neither a strong legal argument, nor does it cleanly apply to this case, ThinkProgress’s Ian Millhiser notes. Many judges have distanced themselves from the Palmer decision, saying that the purpose behind an action had long been a consideration in deciding whether or not it was constitutional. And second, there’s a key difference between Palmer and the “Muslim ban”: in the latter, it’s the motivation of just one actor—Donald Trump—that’s in question, and that’s not “extremely difficult” to ascertain.

But the fact that this case has been cited also has moral implications, NAACP lawyer John-Paul Schnapper-Casteras points out:

Is it really the position of the United States in 2017—either legally or morally—that cities need not integrate whites-only pools and can instead close down public facilities altogether? If so, then that is jaw-dropping and wrong. If not, then the [Justice] Department should not be relying upon Palmer in the first place.

(The Justice Department declined to comment on the Palmer citation.)

Exclusionary policies at local or federal levels can be easily guised. In the local context: seemingly agnostic zoning laws have been used to obstruct the construction of mosques, or to disallow low-income people of color from moving to McKinney, Texas. The Supreme Court has already ruled that the “disparate impact” of these sorts of local actions on certain groups is on par with intentional discrimination. And as the legal battle against Trump’s executive order moves up through the courts, we have yet to learn how much discriminatory motives behind a federal immigration policy matter in determining its constitutionality.

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