God mend thine every flaw,
Confirm thy soul in self-control,
Thy liberty in law!
The “Rational Basis” Standard of Review
This morning, some are stridently taking the Ninth Circuit panel to task for omitting mention of the portion of the Immigration and Nationality Act that gives a president broad power to control our borders.
That’s right. Omitting reference to the statute does raise eyebrows. If Aardvark had been on the panel, he would have mentioned the statute in the decision. But let’s put this in context.
Going in, the government’s logical argument would be
- Point One: There’s a very broadly written statute.
- Point Two: There’s lots of case law saying that you can review the president’s use of his discretionary power, BUT that review must be highly deferential to the president’s determinations. (It’s called the “rational basis” standard of review.)
- Point Three: This order has a rational basis.
Wham, bam, thank you ma’am.
If the government had made that argument, then the government might have won. Instead, it argued—contrary to precedent and contrary to the basic principles of our legal system—that the president’s order is not subject to any judicial review at all.
If the president thinks that red headed people are a menace and orders all of them barred from entry, no review is possible.
Not an appealing argument.
Was it Irrational for Counsel to Ignore “Rational Basis”?
Some this morning are urging that the government’s legal team was incompetent, and lead counsel should be fired. Maybe. Or maybe not.
Maybe counsel for the government didn’t want to argue the “rational basis” standard for review because they thought they had a poor case even under that legal standard.
How Judges React When Counsel Fails to Make His Best Argument
They have two choices. One is to write an opinion that ignores what counsel actually said and instead addresses what counsel should have said.
The other choice is to flatly address the extreme and untenable position that counsel advanced. Here, the panel made this second choice.
I won’t belabor the point, but it’s pretty obvious why all three judges on the panel probably thought it was extremely important to swat down Trump’s lawyers’ extreme position.
The Green Card Clusterfuck
Josh Gerstein writes this morning about 3 key Trump mistakes that led to the travel ban court defeat. The third mistake on his list of three is the one I have just addressed. The first two relate to the mass confusion over whether legal permanent residents are included or excluded from the order. Gerstein lays out the facts in detail.
Wise Counsel on How to Achieve Nefarious Ends
Many commentators argue that Trump’s best course of action would be to rewrite the order, cleaning up the green card mess, and probably tightening it up in other ways as well. Such a course, many argue, would be far better—from Trump’s own perspective—than rushing to the Supreme Court to support the existing order.
Will he take this wise counsel, or will his ego get in the way, and prevent him from effectively achieving his own odious purposes?