My instinctive reactions were, in order: 1. Courts don't seek recourse (they look to the law to resolve disputes that are filed by parties who are seeking recourse), 2. The people always have political recourse — criticizing the President, voting against him in the next election, and pressuring our representatives in Congress to use their political powers (including impeachment) — so it's always wrong to give the impression that there must be recourse in courts or there is no recourse, and 3. All Presidents lie, the political culture is awash in lies, it always was and it always will be, so the notion that something must be done!!! because a President is lying is — to my ear — more lying.
But let's keep reading:
August Flentje, a special counsel to the Assistant Attorney General, who was arguing the case for the Trump Administration, said, in effect, that the emergency was that the restraining order got in the way of the President’s power to say that there was an emergency—to announce that the country was in danger....Davidson is losing me. I think all Presidents lie. Whatever concern you have for the dangers of deceitful claims of emergency, you've got to have neutral principles of law and not special law for the President you think everyone must know is a liar.
When he was asked if the government had pointed to any evidence connecting [the countries identified in the executive order] to terrorism, he rejected the idea that it had to.... “We’re not acknowledging any review on the facts of the case,” Flentje said.
Immigration law does give latitude to the President when the country is in danger. But what happens when you have a President who the courts, and any objective person, know tells lies?...
As it happens, this question has come up before in our jurisprudence, because Donald Trump is not the first politician to lie.Okay. I needed that.
Our courts have dealt with the prospect of dissembling and misstated motives, particularly in the area of racial discrimination.... Judges seem to believe that Presidents will lie about many things, but that they might have some shame when it comes to the nation’s safety, particularly as they have access to classified information that the public does not....Shame? Why would a President be less likely to lie about national security? That's the place where I most expect to hear lies.
“Could the President simply say in the order, we’re not going to let any Muslims in?” Judge Canby asked, at that point.If the answer to that question is no, then maybe courts need to be able to dig past the veneer. Flentje didn't seem to have thought through the value and the downside of saying yes, so he floundered and more or less said no.
Really, Flentje's argument was awful. The President needed a lawyer who would have calmly, boldly, and authoritatively laid down the strong argument for presidential power. Flentje was the one who needed to convince the judges to act, to issue a stay. So really, they don't have to get embroiled in that question I put in the post title. They only need to do nothing.