Trumped by the Constitution


How will the Supremes React to the Total Unreviewability Claim?

Here’s a follow-up on two earlier posts, here and here, about yesterday’s Ninth Circuit ruling.

I direct your attention to a lengthy and thoughtful piece by Richard Primus, entitled Will the Supreme Court Back Trump? As Prof. Primus rightly observes, the conventional wisdom is that the four liberals on the Court will jerk their knees and go with the Ninth Circuit, while the remaining four will go in the opposite direction.

But don’t be so sure, he argues—discussing persuasively and at considerable length the many cases in which courts have affirmed their right of judicial review, even over matters affecting national security.

By contrast, thus far, Trump’s legal team is in full throated denial of the courts’ right to review anything, once the magic words “national security” are uttered by Minority President Trump.

If the case reaches the Supreme Court, Primus predicts, all four Democrats will reject it, as will Justices Roberts and Kennedy. Only the knees of Thomas and Alito will jerk in an authoritarian direction.

For what it’s worth, I think that prediction is sound. But don’t take it from Aardvark. Take it from Professor Primus, who, we are told, is the Theodore J. St. Antoine Collegiate Professor at the University of Michigan Law School. A person with that title must surely know what he is talking about.

Why Did Trump’s Legal Team Assert Total Unreviewability Instead of “Rational Basis” Review?

To reiterate and amplify prior observations,

One, it might (conceivably) just be a matter of incompetent lawyering.

Two, it might be authoritarian zeal overcoming any impulse toward good lawyering.

Three, someone might have instructed them to take this extreme position.

Or, four, they might not have conceded the applicability of “rational basis” review because they didn’t have no friggin’ rational basis.

The most plausible explanation is number four.

Will They Try to Clean This Up?

Unidentified but surely unimpeachable sources say they are now rewriting the executive order, presumably to make it more bullet proof.

Having Redrafted the Executive Order, Will They Take the Position that the TRO Just Went Poof?

If Aardvark, Heaven forfend, were on Trump’s legal team, he would surely think about giving that one a shot.

Does Trump Have a Master Plan to Use a Forthcoming Terror Attack as the Basis to Overturn Our Constitutional Order?

I don’t know, although Paul Krugman evidently does.