More from Professor Dorf

Yesterday's post by Professor Dorf makes an important point with respect to the Washington case about the Muslim ban. The government may argue that the Executive alone can determine what orders are necessary to protect national security. Professor Dorf points out that there are constitutional limits to the Executive's power to do so. When challenged, the President must show that there is a rational basis for the action being taken. Otherwise, a President could justify anything by invoking the words "national security," as Nixon tried to do during the Viet Nam and Watergate era. Rational basis is a low burden for the government to meet, and would not interfere with much Presidential action, but it is not toothless, as Professor Dorf explains.