But also there is a third possibility, and we should be candid about it: Perhaps everything Blackman and Margulies and Bybee are saying is right as a matter of law in the regular order, but there’s an unexpressed legal principle functionally at work here: That President Trump is a crazy person whose oath of office large numbers of judges simply don’t trust and to whom, therefore, a whole lot of normal rules of judicial conduct do not apply.
In this scenario, the underlying law is not actually moving much, or moving or at all, but the normal rules of deference and presumption of regularity in presidential conduct—the rules that underlie norms like not looking behind a facially valid purpose for a visa issuance decision—simply don’t apply to Trump. As we’ve argued, these norms are a function of the president’s oath of office and the working assumption that the President is bound by the Take Care Clause. If the judiciary doesn’t trust the sincerity of the president’s oath and doesn’t have any presumption that the president will take care that the laws are faithfully executed, why on earth would it assume that a facially valid purpose of the executive is its actual purpose?
In this scenario, there are really two presidencies for purposes of judicial review: One is the presidency when judges believe the president’s oath—that is, a presidency in which all sorts of norms of deference apply—and the other is a presidency in which judges don’t believe the oath. What we may be watching here is the development of a new body of law for this second type of presidency.
This, we suspect, is the true significance of all of the references in both district court opinions to the many statements made by Trump and his aides about the Muslim ban and the true purpose of the policy effectuated in both orders.