James Madison famously sketched an invisible-hand theory of institutional competition in The Federalist No. 51.
The case of Washington v. Trump—in which a panel of the Ninth Circuit expressed apparent sympathy, during Tuesday’s arguments, for a district judge’s restraining order against the President’s pause on immigration from seven Muslim-majority countries identified as terrorism threats—has less to do with an overreaching judiciary than with an underperforming Congress.
One way of understanding American history is as a struggle between consequential Presidents who expand liberty and consequential Presidents who expand the state. On this view, most Presidents are frankly not all that important: their decisions are marginal and many are reversed or substantially modified.
If so, Donald Trump’s victory had an important benefit for liberty, even if he himself is no classical liberal, because it prevented Barack Obama from being a consequential President on the statist side of the ledger.