The Midnight Brief


Our system of law and government is not based on the assumption that the president is likely to be a bigoted, delusional jerk. So, in Washington v. Trump the government has some strong arguments.

Because of the nature of his responsibilities, a president has, and must have, wide latitude in protecting the security of the United States. Moreover, as a general matter, courts are ill equipped to second guess national security decisions by the president.

Let’s add that a specific statute gives the president the right to deny admission to any class of aliens based on a finding that entry of such aliens would be detrimental to the interests of the United States.

For icing on the cake, add in that a respectable body of case law says or implies that a court should uphold such an order if it has a “rational basis”—that is to say, if it is rationally related to a legitimate government purpose.

All these things are true, whether progressives like them or not.

But, as Washington’s midnight brief makes clear, the government’s legal team has a big problem. The nub of the matter is this, as Aardvark sees it. Because Trump’s executive order was a big overreach, the government legal team must do a big overreach to try to defend it. The government’s position, as the state of Washington summarizes it, is that “invoking national security prohibits meaningful judicial review and that courts cannot examine the Executive’e motives.”

The government lawyers have to take that extreme position, because admitting evidence of Trump’s campaign statements and motives would be highly detrimental to their case.

Let us see whether, when it files its responsive brief later today, the government claims that the state has mischaracterized it position.

Aardvark’s view? Despite the many points in the government’s favor, its assertion immunity from judicial review serves up a large turd that the appellate court may be reluctant to swallow.

Myriad additional legal issues are raised by the case. Here is one biggie. Another statute says, and I quote, “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of race, nationality, place of birth, or place of residence.”

To get around that one, the government lawyers have to do some legal footwork that would make Fred Astaire green with envy.

And one more. Lots of cases say that people outside the United States can’t assert under the United States Constitution. (I paraphrase, but that’s the gist of it.) “No standing!” shout the government lawyers.

Well, hey, wingers, remember that big immigration case that a bunch of republican state attorneys general brought against Obama’s immigration policies? The one where their standing argument was really, really weak, but they won anyway?

Hoist, meet petard.