Trust the Process

Sports fans know that this is a slogan of the Philadelphia 76ers, as they rebuilt from last place to playoff contender. This argument also could have been the slogan of the Solicitor General in the travel ban case. He repeatedly stressed that the President’s Executive Order was the product of “Cabinet-level” input (in other words, from some Cabinet officials and their departments). The implication was that there could not have been discriminatory intent no matter what the President may have said or may think, because the same view could not have been held by all of the “Cabinet-level” people who were involved. Another consequence of this argument is that many “experts” were involved, which provides a reason for the Court to defer to their views. I find this fascinating because I’ve long wondered about how the Cabinet gets used in constitutional law. The Cabinet is one of the many unwritten British concepts that America…

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