Official Intentions and Political Legitimacy: The Case of the Travel Ban

23 Pages Posted: 13 Apr 2018 Last revised: 2 May 2018

See all articles by Micah Schwartzman

Micah Schwartzman

University of Virginia School of Law

Date Written: April 10, 2018

Abstract

The case of President Trump’s travel ban raises the question of whether the intentions of public officials matter in determining the legitimacy of their actions. In recent years, some have argued that intentions are not directly relevant to the moral permissibility of actions. This permissibility objection can be applied to theories of political legitimacy that make intentions relevant in specifying moral conditions for the exercise of political power. After surveying various ways in which intentions might figure into theories of legitimacy, I present the permissibility objection and then argue that it cannot be sustained in reflective equilibrium. Using examples of discretionary discrimination, including the travel ban, I argue that intentions can be relevant to determining the legitimacy of official conduct. I then defend a doctrine of moral taint, which holds that skepticism about the actions of public officials is appropriate when they have previously taken similar actions on the basis of wrongful intentions.

Keywords: intention, permissibility, legitimacy, travel ban, Establishment Clause, First Amendment

Suggested Citation

Schwartzman, Micah, Official Intentions and Political Legitimacy: The Case of the Travel Ban (April 10, 2018). NOMOS LXI: Political Legitimacy; Virginia Public Law and Legal Theory Research Paper No. 2018-22. Available at SSRN: https://ssrn.com/abstract=3159393

Micah Schwartzman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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