If Trump’s Executive Order Is a ‘Muslim Ban’ — Then Obamacare Is a ‘Government Takeover of Health Care’

Not content with being amateur philosophers, judges are branching into amateur psychoanalysis. As Eugene Kontorovich, David French, and others have pointed out, the Ninth Circuit is open to divining President Trump’s motivations for restricting travel from seven countries. The court has decided that a presidential order that does not mention Islam might actually be a “Muslim ban” because that’s the policy the president supported in the past. Another judge, this time in Virginia, made the same claim on Monday.

Two can play this game. Take PolitiFact’s “Lie of the Year” from 2010: Obamacare is “a government takeover of health care.” PolitiFact tells a long story about devious Republicans who cooked up the takeover “lie” and drowned out the Democrats who were just trying to tell the truth, which is that Obamacare preserved most of the private market. But that was outdated 2010 logic. If PolitiFact were to apply 2017 reasoning, then Obamacare was a government takeover because Barack Obama once endorsed a single-payer system. Obamacare is not actually single-payer, but the president’s motivation was to take over the health system eventually. Therefore, Obamacare is a government takeover.

If we are going to treat policies not as they are, but as what we suspect our opponents want them to be, then our legal system is even more politicized than I thought. Consider: Under the psychoanalytic approach to judging, courts would allow President Hillary Clinton to issue the same executive order as Trump did because, unlike him, she has no history of supporting a Muslim ban. In other words, the constitutionality of an executive order depends on who occupies the White House. That doctrine cannot coexist with the rule of law. It does coexist nicely, however, with the rule of judges.