Yoo's theory promotes frank discussion of the national interest and makes it harder for politicians to parade policy conflicts as constitutional crises. Most important, Yoo's approach offers a way to renew our political system's democratic vigor.

There are a few instances that arise in the unique context of domestic equal-protection challenges to governmental actions that are facially neutral but produce substantial discriminatory impacts on groups of people, based on such suspect classifications as race, nationality, ethnic origin, etc. This doctrine has never been used in foreign affairs.

Well-established Supreme Court precedents indicate that states - like the states of Washington and Minnesota - have no equal-protection rights of their own, nor can they vindicate equal-protection rights of their citizens. The same is true about being able to challenge alleged religious discrimination. This limitation on the states' authority to champion such claims is fundamental to our separation-of-powers architecture.

In our constitutional system, the extent of political controversies, including the protests, surrounding a given issue is utterly unrelated to the analysis of legality and should have no effect on any court.

I believe that the 9th Circuit will not let Robart's decision stand. I say this fully appreciating the fact that the 9th Circuit is the most idiosyncratic in the country and the one most often overruled by the Supreme Court.

My argument is focused on the fact that a relatively small percentage of the world's Muslim countries are impacted by this order. Stated differently, this executive order is a singularly ineffective - in legal parlance, it would be called under-inclusive - form of a Muslim ban.

Yoo's theory promotes frank discussion of the national interest and makes it harder for politicians to parade policy conflicts as constitutional crises. Most important, Yoo's approach offers a way to renew our political system's democratic vigor.