The Travel Ban's Ignominious Precedents
“When the government wants to do something, it has to give a reason,” former acting Solicitor General Walter Dellinger once said. “When it wants to do something bad, it has to give a really good reason.” I begin my introductory constitutional-law course every year with Dellinger’s rule. Governments must give reasons, because governments don’t have rights. They have powers—“just powers” derived, as the Declaration of Independence says, “from the consent of the governed,” and to be used, and honestly explained, for the good of the public.
That is what “limited government” means: Government must explain itself honestly, both to citizens and, if necessary, to courts. That principle is at the heart of the system of judicial review.
But there’s one place where courts seem to believe it doesn’t apply—that spooky constitutional Sargasso where immigration and national-security law flow together. For the past century and more, executive officials have told the federal
