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.
David B. RivkinAccordingly, it is not a Muslim ban at all, but a suspension of entrants from seven countries with conditions on the ground that both promote terrorism and make effective vetting impossible.
David B. RivkinYoo'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.
David B. RivkinThe fact that some former national security officials challenge the policy wisdom of the order, while other national security officials - most notably those of this [Donald Trump's] administration - support it, merely demonstrates that these are policy disputes that the judiciary is both ill-equipped and constitutionally barred from arbitrating.
David B. Rivkin