Sometimes courts must decide cases where a question is raised as to whether the exercise of governmental power violates the rights of a person or a class of persons. Courts use different tests, different levels of scrutiny, to determine the legality of governmental actions and whether the government is denying due process, equal protection, and other rights. The most deferential of these tests to the government is called the rational basis test. Under the rational basis test, the challenged law must bear a rational relationship to a legitimate state purpose.
During the oral argument in the case of Washington, et. al. v. Trump, et. al., the judge questioned whether there was a rational basis for the Executive Order (EO) in light of the fact that the seven countries named have not produced a single terror attack since 2001. The government seems to be arguing that they do not need a rational basis since the Constitution and laws vest in the President unreviewable authority over immigration. Alternatively, the government in its appeal brief cites the Boston judge to suggest that a law cannot be questioned if it states “a facially legitimate and bona fide reason” to ensure “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.”
While under ordinary circumstances, it might be easy for the government to meet this standard, here it is not. For one thing, there is no mention or explanation given that current screening efforts are insufficient to protect the US, and if they are, what additional screening is necessary. The Seattle judge obviously thought the fact that there has not been any demonstrated danger to us coming from these countries was important. Experts have written that the effect of Trump’s immigration EO on our safety and security is lessened by the EO. The people who have been primarily affected by this are legitimate VISA holders, including women and children, educators, students and relatives of individuals already here. These people are not a threat to us. They are the victims of those who are.
But what concerns me is a pattern of delusional tweets and statements from the Tweeter-In-Chief. These include a very large number demonstrably false claims including: Mexicans coming here are primarily rapists and murderers; thousands of people in New Jersey cheered 9/11; climate change is a hoax perpetrated by the Chinese; he never said climate change is a hoax perpetrated by the Chinese; he was against invading Iraq; Obama was born in Kenya; Hillary began the birther movement; Obama and Hillary founded ISIS; there were millions of illegal votes – all for Hillary; and the dishonest news media fails to report terrorist attacks. Each of these statements is either a lie or the product of delusional thinking.
With respect to the immigration EO, Trump is apparently motivated by his delusional belief that without the EO, terrorists are “pouring into our country” from the seven countries named in his order. There is simply no evidence to support this. So the question for the court is whether it can discern a rational basis from an irrational belief. Put another way, if a delusional madman became President, would the President’s decisions be immune from review. The answer, one would hope, is no.