openpolitics.com

We take it for granted that President Trump says demonstrably false things on any number of topics. That is itself alarming.

But gross factual mischaracterizations have started to trickle down to the lawyers who serve at the president’s pleasure: At oral argument in the Supreme Court, for example, the solicitor general declared that the president had made it crystal clear that he would never follow through on his campaign promise to ban Muslims. In fact, the president never said any such thing.

.. In the case, Ms. L v. Immigration and Customs Enforcement, the president has made the up-is-down claim that a Democratic law — the Trafficking Victims Protection Reauthorization Act, in conjunction with the Homeland Security Act and statutes criminalizing illegal entry — requires him to separate families to protect the children.

.. The administration’s legal mumbo-jumbo attempts to use laws that are meant to protect vulnerable children as a screen to terrorize them and to deter immigrants from coming to the United States border.

.. The laws that Mr. Trump’s Justice Department cites — which apply to unaccompanied children, not children with parents — require no such thing.

.. Instead, the Homeland Security law, a statute governing the Office of Refugee Resettlement, gives custody of unaccompanied minors to that department, and very clearly not to the Department of Homeland Security, to address the challenges that children without parents face in the immigration system.

.. The statute that addresses child trafficking — part of the Trafficking Victims law — is designed to reduce the risk that children who are alone will fall victim to human trafficking. The administration is arguing that the laws do the opposite — that they make children more vulnerable to human trafficking and place children at greater risk in the immigration system — and so require the D.H.S. to separate families that would otherwise be together.

.. This is a specious use of law: It inverts the laws governing child immigration and uses them to exacerbate the very evil the law was designed to address.

.. Mr. Trump’s Justice Department is thus lying about what the tax bill did, and about Congress’s intent in passing it. And the department, like the president himself, is doing so as part of a transparent effort to rid the country of a law that Mr. Trump and his Republican caucus do not like but could not repeal through normal channels.

.. Lawyers, including at the Department of Justice, sometimes make aggressive arguments. But there is a difference between aggressive and preposterous, and between truths and untruths. The rule of law depends on these distinctions — to hold governments officials to the law, we need to be able to acknowledge what the law says.

.. The administration is simultaneously insisting that it must enforce a law that does not exist, but is refusing to defend a law that actually does exist, and jeopardizing the law in the process.

.. More likely, the administration will not persuade the current Supreme Court with these arguments. But it may be playing a long game that shifts expectations about legal arguments, and what falls within the bounds of reasonable — to make the law seem as manipulable, and therefore as easy to write off, as the facts.

This is a test for the courts. The executive and legislative branches have in too many ways capitulated to the president’s post-factual world. Will the legal system allow a post-legal one as well?