Waiting for the Midnight Brief

As we await developments in Washington v. Trump, I watched the video of the oral argument before so-called Judge Robart on January 27. It lasts a little more than an hour. Though it deals with a variety of arcane legal issues, I highly commend it.

This, ladies and germs, is how to conduct a civilized debate. This is how to do justice. This is how to address grave matters of state and grave matters of conscience.

As I said, there is quite a lot of legal complexity. I won’t attempt to summarize all the issues, let alone do them justice. Nor should I be understood to downplay the importance of that which I do not summarize.

That said, it is of the first importance that the government cited no actual threats that would be forestalled by the order. It cited no arrests of terrorists from the seven countries mentioned in the order. Instead, the government took the position that it has no legal obligation to show that the order is rationally based. Instead, said the government, its only obligation is to show that the order is “facially legitimate”—i.e., that it purports to be based on facts that warrant the action taken, whether or not the stated facts are actual facts.

As counsel for the state of Washington observed, that means that a stated national security rationale trumps any judicial review of an executive order.

Can anyone think of a more perfect legal underpinning for a fascist state?

Finally, confronted with an apparent conflict between two provisions of the Immigration and Naturalization Act with respect to whether discrimination on the basis of national origin is or is not permitted, learned counsel for the government contended that such discrimination must surely be OK, for otherwise the president wouldn’t even be permitted to bar entry by persons from countries with which we are at war.

She seemed to think that was an exceptionally strong argument. She said it twice.

Her position, of course, would allow the president to bar Holocaust victims on the ground that they are German nationals.