How should citizens in a republic bound by the rule of law regard the pretextual use of law by state officials? If the United States Supreme Court is any indicator of the answer in our own republic, we are pretty ambivalent about pretext.
Sometimes we don’t care very much. In its most well-known case on the subject, Whren v. United States (1996), the Court upheld the pretextual use of the traffic code (which was prolix enough to be violated sooner or later by just about any car on the road). Whren’s car was stopped by a vice squad cop who had a hunch (but not probable cause to believe) that Whren had drugs in his car. One lesson of this case is that you should always signal before making a turn. Justice Scalia, writing for a unanimous Court, had another one: the police are free to do “under the guise of enforcing the traffic code what they would like to do for different reasons.” In other words, a green light to pretextual traffic stops.
Sometimes, we care a great deal. In Kelo v. City of New London (2005), the Supreme Court categorically rejected the idea that government officials may “be allowed to take property under the mere pretext of a public purpose, when [their] actual purpose was to bestow a private benefit.” Likewise, interpreting Title VII in their concurrence in Ricci v. DeStefano (2009) (which concerned a city fire department), Justices Alito, Scalia, and Thomas highlighted the subjective component of liability in a civil suit for employment discrimination in a disparate-treatment case: the employer is liable if its facially legitimate reason for a decision turns out to be “just a pretext for discrimination.” Justice Frankfurter long ago chastised the Court for sustaining a law “because Congress wrapped the legislation in the verbal cellophane of a revenue measure.” The concept of limited and enumerated powers seems to suggest a general disapproval of pretext.
Does repeated pretextualism — whether one is making or enforcing the law — weaken the rule of law? When tempted to use a law for an unintended purpose, how should the “good” official (read the adjective however you like) distinguish an innovative use from a destructive one? My own motivation for this research stems from concern that using law to achieve an objective that the law was clearly unintended to achieve might do something destructive to the rule of law itself. Maybe it does some harm to the official who wields power in that pretextual way, too, an official who may be the worst-placed government agent to exercise the sort of discretion that creative administration of the law demands. Pretextualism may be habit-forming and, like cigarettes, unhealthy.
After the break, I’ll share my working definition of pretext and two cases separated by more than fifty years, but adopting the same pretextual technique to evade restrictions on government action. One involves a Soviet spy whose case troubled the Supreme Court so much that the Court heard oral argument twice. Surprisingly, that case foretold and influenced the “easy” Whren case. The other involves a former college football player caught up in the current “War on Terror.” That case, Ashcroft v. al-Kidd, was decided in May, also referencing Whren, but this time without such unanimity and with a lot more unease about pretext.