The Rational Fascist Test, or, WWMD?


Aardvark senses that the commentariat is slowly giving up its struggle to find “the method in Trump’s madness.” That’s like sending out a posse to round up all the unicorns in Texas.

Meanwhile, there is a brouhaha about Trump’s Superbowl interview comments on Putin. To go straight to the source—the Faux News Network:

In a special preview, Trump revealed his plans for dealing with Russian President Vladimir Putin

O’Reilly asked Trump whether he “respects” the former KGB agent:

“I do respect him, but I respect a lot of people,” Trump said, “That doesn’t mean I’m going to get along with him.”

Trump said he would appreciate any assistance from Russia in the fight against ISIS terrorists, adding that he would rather get along with the former Cold War-era foe than otherwise.

“But, [Putin] is a killer,” O’Reilly said.

“There are a lot of killers,” Trump responded, “We’ve got a lot of killers. What do you think? Our country’s so innocent?”

In response, leading Republican invertebrates denounced the comments as a denigration of American exceptionalism.

“He’s a thug,” Senate Majority Leader Mitch McConnell (R-Ky.) said of Putin on Sunday on CNN’s “State of the Union.” “The Russians annexed Crimea, invaded Ukraine and messed around in our elections. No, I don’t think there’s any equivalency between the way the Russians conduct themselves and the way the United States does.”

Well, there is that, But putting the sacredness of American exceptionalism to one side, here is what Aardvark thinks. He thinks that Trump is delusional, and that he is remarkably candid about his delusions.

I believe that Trump would love nothing better than to kill some journalists and political opponents. Whether he will try to do it, I cannot say. I certainly hope not. But I think that in his delusional mind, Trump sincerely believes has moral justification to assassinate some people who, in his way of thinking, need killing.

Now I am neither a mind reader nor a clinical psychologist. Lacking those skills, I substitute the application of the Rational Fascist Test, or, What Would Mussolini Do? (You may, if you wish, substitute Machiavelli for Mussolini.)

Would a rational fascist be so candid about his hopes and intentions? No, he would not. In the present circumstances, the rational fascist would be much more subtle about his plans.

Or at least that is what I think. As we proceed day by day, let us continue to apply the Rational Fascist Test to try to learn whether there is a method in the madness, or just madness.


Justice Has Triumphed. Recommend Urgent Appeal.


It’s Sunday morning, February 5. In the wee hours of last night, two members of a three judge Ninth Circuit panel, having had the opportunity to read a lengthy government brief,  (1) temporarily denied the government’s emergency motion to overturn so-called Judge Robart’s injunction, and (2) ordered the plaintiff states to reply by midnight tonight, Pacific time, with the government to reply to the reply by 3:00 PM on Monday, also Pacific time.

For those of you who might be confused by time zones, that’s 3:00 AM Monday and 6:00 PM Monday, World Time.

I expect we will see a decision on Monday evening or some time Tuesday. I make no prediction about which side will win.

The government’s opening brief was plainly written by the varsity team and is well crafted. It takes the same approach Aardvark would take, were he tasked with the detestible obligation to justify Trump. Rather than trying to defend the actual necessity for the executive order, the brief hops up and down about separation of powers, judicial second guessing of national security determinations, and wide legal authority to bar any “class of aliens” that the President deems, in his unfettered discretion, to pose a threat to national security.

Abstract arguments of that nature beg to be tested by hypothetical questions.

So, Mr. Government Counsel, the President can bar all Muslims if he deems all Muslims to be a threat, is that your position?

So, Mr. Government Counsel, the President could bar all black immigrants if he somehow determines that black folks are a threat, is that your position?

Though they are unlikely to take counsel from Aardvark, he is confident that the same kinds of thoughts will occur to the panel. Again, I make no prediction about the outcome.

The panel, by the way, consists of three judges appointed, respectively, by so-called Presidents, Carter, Bush Junior, and Obama. Mr. Bush Junior appointee did not sign his name to last night’s order. It is not known whether that’s because he disagreed with it, or, perhaps, because, like Aardvark, last night he was enjoying a visit with his good friend Jack Daniels and was in no shape to read legal briefs.

Please Observer a Moment of Silence to Honor the Victims of the Bowling Green Massacre

Aardvark welcomes his new Aussie readers. G’day, mates. Because you live in a rational country, you will benefit from the following explanation. On Thursday Kellyanne Conway, Minster of Truth for the new administration, bereated the lamestream media for their failure to report the Bowling Green Massacre.

“I bet it’s brand new information to people that President Obama had a six-month ban on the Iraqi refugee program after two Iraqis came here to this country, were radicalized and were the masterminds behind the Bowling Green massacre,” she said. “Most people don’t know that because it didn’t get covered.”

Please join your American brethren in a moment of silence in honor of the victims of the Bowling Green Massacre, which never occurred.



Are You Feeling that Injunctive Relief?


As I write on the evening of February 14, and of the Trump Administration the fourteenth day, there appear to be 19 lawsuits challenging his executive order on immigration. They may be tracked here.

Interestingly, speaking of canines that remain silent during the evening, whoever is responsible for the U.S. Justice Department web site knows bupkus of these developments.

But I digress.

Of the 19 lawsuits, most eyes are on State of Washington v. Trump (W.D. Wash.), in which so-called District Judge James L. Robart, who was appointed by so-called President George W. Bush, has issued a temporary restraining order that has resulted in the government’s going back to square one.

Responding with its customary moderation and precision, the White House said, “”At the earliest possible time, the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the president, which we believe is lawful and appropriate.”

In fact, the Justice Department cannot “file a stay,” but it can, if so advised, file a paper asking the district judge to stay his own order pending appeal, or it can file a paper in the court of appeals seeking a stay pending review. If and when such a request to the court of appeals is made, the court will consider four factors:

  1. Whether President Trump has made a strong showing that he is likely to succeed on the merits,
  2. Whether the interests of the United States will suffer irreparable injury if the status quo ante remains in place until the case is fully litigated, which will take some months at least
  3. Whether issuing the stay will seriously injure the parties on the other side, i.e, the would–be immigrants and those allied with them, and
  4. Where the public interest lies.

Mr. Trump entertains the paranoid delusion that “weak vetting” is letting in all manner of dangerous people, but let us see what evidence his lawyers can marshal in support of that delusional assertion. Maybe they will cite the grievous harm created by the infamous Bowling Green Massacre.

If the court buys into Trump’s paranoia, then factors two and four are strongly in the government’s favor. If the court doesn’t buy the big risk argument, then it seems to me that the government’s case goes poof.

Meanwhile, back in the so-called district court, we have the brief filed by the plaintiffs, the states of Washington and Minnesota, a slew of amicus curiae briefs filed by the ACLU and other entities opposing Trump, and not much of anything publicly available that was filed by Mr. Trump’s lawyers or outside groups supporting him. (A curious case of more non-barking dogs.)

I have provided a link to so-called Judge Robart’s temporary restraining order, which is preceded by several pages of supporting rationale. It raises Aardvark’s eyebrows. The discussion goes into isues of legal standing and injury in some depth. But a motion for preliminary relief does not begin and end with whether we may shed tears for the plaintiffs, because even the most tear-inducing of plaintiffs is not entitled to legal relief if he has no legal claim. Thus, a court must not only consider injury but also make a prediction about which side is likely to win the case—at the end of the day, after discovery, briefing, trial, appeal, and what have you.

In that regard, so-called Judge Robart makes a flat and unqualified prediction that the plaintiffs “are likely to succeed on the merits of the claims that would entitle them to relief.” But he does not say what considerations have led him to that conclusion.

Maybe so-called Judge Robart liked all of the plaintiffs’ legal theories, which may be summarized this way. I list them in the order in which they appear in the brief—and normally counsel put what they think are their best arguments first.

  1. The executive order unconstitutionally discriminates based on national origin, in violation of the constitutional rights of lawful permanent residents.
  2. By blocking Syrian refugees the order unconstitutionally discriminates on the basis of national origin.
  3. By prioritizing minority religions, the order unconstitutionally discriminates based on religion.
  4. The executive order violates a federal statute that prohibits discrimination in issuing visas based on nationality.
  5. The order lacks a rational basis, but is instead based on religious bias, and it surely cannot meet the alternative “strict scrutiny” test (which is the legal standard that ought to be held applicable).
  6. The order violates the First Amendment because it favors one religion over another.
  7. The order violates the due process rights of would-be immigrants to receive notice and an opportunity to be heard before denying reentry to permanent residents and visa holders. \
  8. The order violates a legal right to petition for asylum based on fear of persecution.


As of Saturday night the Justice Department has filed a “notice of appeal,” not a motion for a stay pending appeal. Aardvark does not understand how there could legitimately be an “appeal,” inasmuch as so-called Judge Robart didn’t make a final decision about anything; he only issued a temporary restraining order. But Aardvark seems to remember that he only made a B in Civil Procedure at Harvard Law School, so there you go.

We are told that the “appeal,” or whatever it is, will be heard by a three-judge panel consisting of judges appointed respectively by so-called President Bush, so-called President Carter, and so-called President Obama.

Only the notice of appeal has been filed, not the supporting brief, so we don’t know what role the Bowling Green Massacre will play in the government’s argument.


How to Pass the Time Between Now and Impeachment


Thanks to the indispensable Vasari for passing along this jewel:

And a big shoutout to Mitzie from upstairs. Aardvark and Dr. Aardvark were dining with Mitzie and Dr. J. here at Happy Acres tonight. Mitzie helpfully called our attention to this page about Trumplethinskin, also known as Pig Boy. It includes a lengthy Dr. Seuss hommage that begins thusly,


In a land where the states are united, they claim,
in a sky-scraping tower adorned with his name,
lived a terrible, horrible, devious chump,
the bright orange miscreant known as the Trump.

Aardvark’s own contributions are as follows. In previous times of considerable stress, I have drawn solace from reading the Tolkien Trilogy. You might try it. As for me, I have already read it twice, and I believe I will save the third reading for the day after I receive that terminal diagnosis.

We discussed some alternatives over dinner, and concluded that Wodehouse’s Blandings Castle series might be just the ticket. (I see that on amazon the Blandings Omnibus is available at prices ranging from one cent to $240.76; either way, you’ve got to add $3.99 for shipping.)

As for myself, I am on the fourth book in the late Marcel Druon’s Accursed Kings series. The series tells the story of Philip the Fair and the kings who followed him. The second in the series is The Strangled Queen. The third is The Poisoned Crown. These are clues. All was not well in fourteenth century France. Very engrossing stuff, and nothing like our modern, advanced age.